Chronic employment

New bill would prevent employers from discriminating against medical-pot patients

State Sen. Mark Leno’s proposed bill would prevent employers from discriminating against a candidate for a positive drug test.

State Sen. Mark Leno’s proposed bill would prevent employers from discriminating against a candidate for a positive drug test.

Photo By Kyle Monk

When 45-year-old disabled Air Force veteran Gary Ross was fired from his job after failing a drug test, he informed his employer that he was legally permitted by his doctor to use medical marijuana. Unfortunately, this did not save Ross’ job. It did, however, spark conversation about discrimination in the workplace, and whether there should be a provision in the law to protect medical-marijuana patients from termination based on their (legal) drug use.

Ross sued for unlawful discrimination, and the California Supreme Court eventually determined that he, being a qualified patient, was not protected in the workplace under any law. Neither the Compassionate Use Act of 1996, which authorized the use of marijuana for medical purposes, nor the Fair Employment and Housing Act, which established protections for employees and employers, provide any clarification.

State Sen. Mark Leno, D-San Francisco, is proposing legislation that would provide employment rights to the nearly 500,000 people in California who legally use medical cannabis. Because these Californians are not protected under current law, patients must often find jobs that don’t require drug testing.

Senate Bill 129 would change this, making it illegal for employers to discriminate against an employee on the basis of a positive drug test, provided that the employee is a qualified patient. Nearly identical to Assembly Bill 2279 (which Sen. Leno proposed in 2008 and which passed through both houses, only to be vetoed by Gov. Arnold Schwarzenegger), S.B. 129 passed out of the Senate Judiciary Committee last month and is set for a vote soon on the Senate floor.

S.B. 129 is sponsored by Americans for Safe Access, which hopes that the bill will “finally win protection for responsible, law-abiding patients in the workplace.” ASA sees the bill as a sensible one, which would encourage the employment of Californians and, in keeping qualified patients employed, avoid further strain on state welfare programs.

While A.B. 2279 was supported by the Legislature when it was proposed in 2008, many employment organizations have come forward in opposition to S.B. 129. Many opponents worry that the bill would allow employees to come to work impaired or use marijuana during work hours.

One key facet of the bill is the stipulation that the qualified patient cannot be under the influence at work or during working hours. Additionally, the protections provided under S.B. 129 would not be extended to employees who work in what the bill calls a “safety sensitive” position. This would include any position where the employee could have the capacity to affect the health or safety of others. The vagueness of this part of the bill has raised some alarm among those who aren’t convinced of the bill’s viability.

Given the former success of A.B. 2279, it is likely that S.B. 129 will pass in the Legislature. But the road to becoming law is long, and whether the bill receives the appropriate edits when it is submitted for further committee review will determine its eventual success.