CA: Bill Would Provide Workplace Discrimination Protection For Medical Cannabis Users

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With California’s legalization of recreational cannabis this year, state lawmakers continue to push legislation that normalizes cannabis use.

State Assemblyman Rob Bonta, D-Oakland, wants to see that normalization extended to the workplace through protections for employees who use cannabis for medical purposes.

“As we continue to make the massive transformation to legalization of adult use cannabis, and a full regulatory (system) for medical cannabis … we need to make sure the rights of users of cannabis as medicine are protected,” Bonta told the Business Journal.

Drug testing has long been part of the hiring process for many employers. But Bonta sees the practice as outdated — and potentially discriminatory. Today, he said, many Californians rely on cannabis as an alternative to over-the-counter and prescription drugs. Therefore, protecting job applicants’ or employees’ medicinal choices should be extended to medical cannabis, Bonta argues.

Assembly Bill 2069, to be heard by the Assembly Committee on Labor and Employment next Wednesday, does establish some limits to those protections. It would not protect employees from being disciplined or terminated for being impaired on the job. The bill would also exempt employers who would lose “monetary or licensing-related benefit under federal law” as a result of employing an individual who uses cannabis.

That has not been enough, however to win over business interest groups such as the California Chamber of Commerce and the National Federation of Independent Business California.

CalChamber said in an April 12 letter to the Legislature that the bill could expose employers “to costly and unnecessary litigation.”

Assembly Bill 2069 would limit employers’ ability to deny a job applicant employment for testing positive for marijuana use or for acknowledging the use of marijuana if the individual has a card for medicinal cannabis.

Bonta notes that existing laws protect employees from discrimination based on their prescription drug choices, and he argues those same protections should be extended to patients who rely on cannabis for medical purposes. He added that cannabis can be a safer alternative to prescription drugs, and not passing the bill could push some to rely on more addictive and deadly drugs, such as opioids.

Bonta acknowledges that those protections need to have some limitations to meet the concerns of businesses and ensure a safe workplace. The protections outlined in the bill also do not apply to certain types of jobs — such as airline pilots.

Bonta introduced amendments to the bill this week to remove language that would create a “protected class” for employees who use medical cannabis. Employees identified as a protected class are afforded a special level of protection from workplace discrimination, and include groups based on sex, age, religion and race. Under the amendments, the bill would instead require employers to create a “reasonable accommodation” for employees with a medical cannabis card.

Shawn Lewis, spokesman for the National Federation of Independent Business California, said the amendments are a step in the right direction — but his organization still has objections to the bill.

“The problem is there is no way to test how someone is impaired due to marijuana — unlike testing for alcohol impairment,” Lewis said. “That’s a big issue we still have. And we’re not sure if or how this can be resolved through amendments.”

Lewis added that Bonta has maintained an open dialogue with business groups. NFIB representatives met with Bonta’s office Thursday to discuss the amendments and the federation’s outstanding concerns.

Bonta told the Business Journal he is willing to work with opponents of the bill on the question of impairment at the workplace.

CalChamber representatives declined to comment on the amendments introduced this week because the organization was still reviewing them.

Bonta said he does not want the bill to saddle businesses with unnecessary litigation costs, and is open to introducing amendments that would create a dispute resolution process to avoid courtroom battles.

“There would be some way to referee that dispute … (but) I’m not sure what that is yet,” Bonta told the Business Journal. “I’d like to learn more from employers about what that system would be.”

Lewis said NFIB would be interested in discussing an alternative dispute process with Bonta, but also expressed skepticism.

“Anything that creates a private right of action, it’s hard to mitigate that through statute,” Lewis said.