Marijuana (cannabis) remains a Schedule I drug under the federal Controlled Substances Act. And, more than a decade ago, the California Supreme Court held in Ross v. RagingWire Telecomm., Inc., that employers have the right to reject an applicant who tests positive for medical cannabis. Since that time, California employers have enjoyed some comfort in the ability to enforce their workplace substance abuse policies. However, we never expected this to be the end of the saga in California.
To start, in February 2018, a California assembly member introduced AB 2069 (“Medical Cannabis Worker Protections Act”), a bill that would have amended the Fair Employment and Housing Act (FEHA) to require most employers to engage in the interactive process with and consider reasonable accommodations for medical cannabis users. That bill, however, failed to advance past the Appropriations Committee.
Not surprisingly, another, far more comprehensive, bill has started its own journey. On February 18, 2020, Assembly Member Rob Bonta (D) introduced AB 2355, which, if passed, will amend the FEHA to provide express employment protections to medical cannabis users. Specifically, subject to certain exceptions, the bill would make it unlawful for an employer to discriminate or take adverse action against an applicant or employee “because of the employee’s status as a qualified patient, as defined in Section 11362.7 of the Health and Safety Code, for purposes of medical cannabis or as a person with an identification card, as defined in Section 11362.7 of the Health and Safety Code …” According to the proposed bill, a qualified patient or cardholder will be entitled to the same rights to reasonable accommodation and the interactive process as are provided to workers prescribed other legal drugs under the FEHA so long as a variety of conditions set out in the bill are satisfied.
The bill includes several employer-friendly provisions. Specifically:
- It will not be interpreted as preventing employers from refusing to hire an individual, or from discharging or reasonably accommodating a qualified patient or cardholder, if doing so could reasonably cause the employer to violate, lose a monetary or licensing-related benefit, or incur damages under federal law or regulations, including Department of Transportation drug and alcohol testing regulations and the Drug-Free Workplace Act.
- Employers will not be subject to the law, including providing a reasonable accommodation, if the employer requires all employees and job applicants to be drug and alcohol free for legitimate safety reasons as required by federal or state laws and who are required to conduct applicant and ongoing testing of employees by those laws and regulations.
- It will not be construed as diminishing an employer’s ability to take action against an employee if the employer discovers the employee is using or impaired by medical cannabis on the property or premises of the place of employment or during the hours of employment.
- An employer may utilize impairment testing before or during work, in addition to other measures, to determine if an employee is impaired. The information provided by the test may be considered in conjunction with other considerations in determining a reasonable accommodation.
This proposed bill has more meat to it than most medical cannabis statutes that, as written or as construed by the courts, provide employment protections to applicants and employees. For example, if enacted, the law will expressly allow an employer to obtain from the applicant or employee information necessary to conduct a meaningful assessment of what, if any, reasonable accommodation is available to the individual. That said, current hearings on the bill have been postponed and, thus, it remains to be seen whether this bill will see any movement given the COVID-19 pandemic.