NEW Proposed Legislation Requires Accommodation Of Medical Marijuana

Here we go again! A few weeks ago we reported a favorable decision that employers did not have to accept medical marijuana certificates, the California Legislatures are weighing in!This ongoing debate on California employers’ right to enforce a drug free workplace has been revived in Sacramento as the Legislature considers Senate Bill 129.  SB 129, similar to legislation previously vetoed by then-Governor Schwarzenegger, “would declare it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment” for the lawful use of medical marijuana, “except as specified.”  The “as specified” language permits termination or discipline of an employee “who is impaired on the property or premises of the place of employment, or during the hours of employment.”  In other words, SB 129 prohibits employers from taking corrective action against employees using medical marijuana, unless the drug use “impairs” job performance.  Under the proposed legislation, an employee who returns from lunch smelling strongly of marijuana cannot be disciplined unless the employer can demonstrate that the employee’s job performance is impaired as a result of the drug use.  In contrast, an employer is permitted to prohibit alcohol consumption during the workday, regardless of whether the alcohol impacts job performance.  What is more, denial of employment to a cannabis-using job applicant is prohibited under the proposed legislation.  California employers would not be able to deny employment based on an applicant testing positive for “medical” marijuana in the course of pre-employment drug screening.

Given the ease of obtaining a medical marijuana “prescription,” should SB 129 pass, employers can expect to see an increase in discrimination claims as employees allege that that their termination was based not on poor job performance, but on legal use of marijuana.

This is going to be interesting. The Feds have held in the past that California employers do not have to accept these marijuana certificates and have even raided the marijuana vending machine outlets from time to time. Since Jerry Brown is back as Governor, the odds are good that should the bill reach his desk he will sign it into law. I will keep you posted.