420 Magazine Background

SB 129 (LENO) Will Protect Patient's Rights

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
As many as 500,000 Californians legally use medical cannabis (marijuana) to treat the symptoms of HIV/AIDS, cancer, Multiple Sclerosis, chronic pain, and other serious conditions. On January 24, 2008 the California Supreme Court ruled in Ross v. RagingWire Communications that an employer could fire an employee who was a lawfully qualified medical cannabis patient, even if the employee was neither impaired nor under the influence of cannabis at the workplace. Less than a month later, then-Assemblymember Mark Leno (D-SF) introduced AB 2279 to protect against patient discrimination at the workplace by overturning the California Supreme Court decision. Despite passing both houses of the State Legislature with strong support from disability rights, labor, medical and legal groups, former Governor Arnold Schwarzenegger vetoed AB 2279. Senator Leno has introduced SB 129, a bill sponsored by Americans for Safe Access (ASA), to finally win protection for responsible, law-abiding patients in the workplace.


California law already prohibits the use of medical cannabis by qualified patients on the property or premises of any place of employment or during work hours. SB 129 clarifies that an employer may not discriminate against an employee in hiring, termination, or any term or condition of employment, if the discrimination is based solely on the employee's status as a qualified medical cannabis patient who uses their doctor recommended medication outside of work and not during working hours. Some states with medical cannabis laws, such as Arizona, Maine and Rhode Island, have explicit legal protections against patient discrimination at the workplace. SB 129 includes an exception for safety sensitive positions in which medical cannabis-affected performance could endanger the health and safety of others. Positions such as health care providers, school bus drivers, operators of heavy equipment, police officers, and others are exempted to protect employers from liability and to ensure public safety.


Proposition 215 & The Medical Marijuana Program Act (MMPA)

In 1996, California voters passed Proposition 215, The Compassionate Use Act "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes." In 2003, state legislators adopted SB 420, the Medical Marijuana Program Act, to address issues left unresolved after the adoption of Proposition 215, including the establishment of a qualified patient's right to use medical cannabis outside the workplace.

Ross v. RagingWire Communications

In September 2001, Gary Ross, a 45-year-old disabled Air Force veteran, was fired for failing an employer-mandated drug test despite, informing his employer in advance that he was using medical cannabis outside the workplace under his doctor's recommendation. Ross sued and his case was eventually heard before the California Supreme Court.

In 2006, then-Assemblymember Leno and the other legislative co-authors of the MMPA filed an amicus curiaebrief with the Court in support of Ross and underscored the legislature's intent to permit the use of medical cannabis outside the workplace. In the brief, the authors of the MMPA stated, "We believed that the voters did not intend for the Compassionate Use Act to apply only to unemployed medical cannabis patients, but to all qualified patients, including those who could be productive members of the workforce."

On January 24, 2008 the California Supreme court ruled in Ross v. RagingWire Communications that an employee using medical cannabis with a doctor's recommendation as permitted by California law, may be fired solely because of their status as a medical cannabis patient. This controversial decision was called one of the "worst of the year" by the magazine California Lawyer.

Impact of the Ross Decision

In its ruling, the California Supreme Court ignored the will of the voters and the legislature by invalidating the rights of over 500,000 legal patients to be free from discrimination in employment. Gary Ross was not employed in a safety-sensitive position, did not use medical cannabis at the workplace, and was not under the influence of cannabis at work. In essence, the Court said that Ross could be fired simply because of his status as a patient using doctor recommended medication. In denying Ross certain protections from employment discrimination, the Court did invite the legislature to clarify its intent with respect to the employment rights of medical cannabis patients.


Senator Leno's SB 129 will provide the clarification requested by the Court and reverse a decision that denies employment rights to medical cannabis patients and puts them at risk of unjust termination. By amending the Health and Safety Code to prevent discrimination against patients in hiring, termination, or any term of employment, except in the case of safety-sensitive positions, this bill clearly establishes that medical cannabis patients have a right to work. SB 129 does not require an employer to accommodate cannabis impairment or use in the workplace, and does not require the employer to violate any state or federal laws.

The policy of this state should be to encourage gainful employment for those patients who are able to work. In addition to being an issue of basic fairness in employment, medical cannabis patients who lose their jobs could become an additional burden for state general assistance, MediCal, and other social service programs that are already stressed by the economic crisis. This bill is a reasonable solution that protects patients, employers, and public safety.


Preserves the rights of employers to take action against employees that come to work impaired or consume medical cannabis at the workplace.

Prevents an employer from discriminating against a legal medical cannabis patient in hiring, termination, or any term of employment based on his or her status as a patient or based on a positive test for medical cannabis use that occurred during non-working hours and outside the workplace.

Enables a legal patient who is the victim of employment discrimination to file a civil action in state court.

Preserves the right of employers to take any necessary precautionary measures in the terms of employment for any legally qualified patient working in a safety-sensitive position.


The bill will not require employers to accommodate using cannabis in the workplace or during working hours under any circumstances.

The bill does not require employers to hire or continue to employ medical cannabis patients that work in safety-sensitive positions.

The bill does not expose employers to any criminal liability or violate federal drug-free workplace laws.

The bill does not force an employer to violate any federal or state law.

News Hawk: User: 420 MAGAZINE
Source: Americans for Safe Access
Copyright: 2008 Americans for Safe Access
Contact: info@safeaccessnow.org
Top Bottom