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Marijuana in the Golden State: California Lawmakers Seek to Protect Medical-Marijuana Users in the Workplace

Although California legalized medical marijuana use in 1996 and recreational use in 2016, California employers have always been free to maintain zero-tolerance policies against all users. That could change soon as a result of Assembly Bill 2069 (“AB 2069”), which would amend the California Fair Employment and Housing Act to create a new class of protected persons: medical marijuana cardholders.

Specifically, the legislation would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” The legislation, however, would not protect employees who are “impaired on the property or premises of the place of employment or during the hours of employment because of the use of cannabis.” Likewise, it would not protect recreational users or employees whose employers would lose a monetary or licensing-related benefit under federal law or regulations should the employers hire or fail to discharge a medical-cannabis user. AB 2069 is part of a trend among state lawmakers, and certain courts, to go beyond merely legalizing marijuana use, particularly medical marijuana, and provide employment-related protections for medical marijuana users.

AB 2069 leaves some critical questions unanswered and thus, if signed into law, could result in litigation or at least uncertainty. For starters, it may be preempted by the federal Controlled Substances Act, which among other things makes marijuana possession illegal. It also does not clarify what its drafters mean by “impaired.” Is it a certain detectable level of THC in the body? And if so, what level? More fundamentally, how can employers distinguish between a mere positive test (which could have resulted from use the prior day) and actual impairment? California has not yet identified a standard measure for marijuana impairment.

Should AB 2069 pass, employers will need to update their drug-testing policies and educate employees about what is permissible under those policies, as it will no longer be permissible to refuse an applicant employment automatically based on his or her testing positive for marijuana use.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VIII, Number 109

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About this Author

Jaime Walter, Litigation Lawyer, Drinker Biddle
Senior Attorney

Jaime D. Walter has litigated cases at the trial and appellate levels and in state and federal courts across the nation. Jaime has represented defendants in single-plaintiff actions, class and collective actions, and coordinated proceedings, and she has extensive experience managing all aspects of pre-trial and trial work-up.

Jaime’s practice includes representing employers facing wage-and-hour, harassment, discrimination, retaliation, wrongful termination, fraud, defamation, unfair competition, and PAGA (Private Attorneys’ General Act) claims,...

415-591-7631
David Wolfe, Drinker Biddle Law Firm, Chicago, Tax Law Attorney
Of Counsel

David L. Wolfe represents clients in a full spectrum of industries with an emphasis on tax-exempt organizations. His broad-based practice includes tax-qualified plans and executive compensation.

David focuses on benefits issues for tax-exempt clients, U.S. benefits for international clients, global stock arrangements, reducing ERISA litigation and fiduciary liability exposure, cash balance and other hybrid pension arrangements. He also handles legal compliance reviews, executive compensation, incentive pay arrangements and the corporate governance of benefit plans and other health system asset pools.

He is a co-founder and member of the Steering Committee for the development and continuing sponsorship of the HR/Hospital Advisory Board (co-sponsored by Deloitte) for senior HR executives in tax-exempt health care systems.

312-569-1313