BILL ANALYSIS
AB 2279
Page 1
ASSEMBLY THIRD READING
AB 2279 (Leno)
As Amended April 21, 2008
Majority vote
JUDICIARY 6-3 LABOR AND EMPLOYMENT
6-2
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|Ayes:|Jones, Evans, Feuer, |Ayes:|Swanson, DeSaulnier, |
| |Laird, Levine, Lieber | |Fuentes, Laird, Leno, |
| | | |Ruskin |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tran, Adams, Keene |Nays:|Strickland, Gaines |
| | | | |
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SUMMARY : Prohibits employers from discriminating against an
employee on the basis that the employee is a qualified medical
marijuana patient. Specifically, this bill provides that:
1)It is unlawful for an employer to discriminate against a
person in hiring, termination, or any term or condition of
employment or otherwise penalize a person, if the
discrimination is based upon either of the following:
a) The person's status as a qualified patient or a
designated primary caregiver; or,
b) The person's positive drug test for marijuana, provided
the person is a qualified patient and the medical use of
marijuana does not occur on the property or premises of the
place of employment or during the hours of employment.
2)A person who has suffered discrimination may institute and
prosecute in his/her own name and on his/her own behalf a
civil action for damages, injunctive relief, and any other
appropriate equitable relief to protect the peaceable exercise
of the right or rights secured.
3)These provisions against discrimination shall not apply when
an employer employs a person in a safety-sensitive position,
defined to mean a position in which medical cannabis-affected
performance could clearly endanger the health and safety of
others and having all of the following general
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characteristics:
a) Its duties involve a greater than normal level of trust,
responsibility for, or impact on the health and safety of
others;
b) Errors in judgment, inattentiveness, or diminished
coordination, dexterity, or composure while performing its
duties could clearly result in mistakes that would endanger
the health and safety of others; and,
c) An employee in a position of this nature works
independently, or performs tasks of a nature that it cannot
safely be assumed that mistakes like those described could
be prevented by a supervisor or another employee.
4)A "safety-sensitive position" also includes law enforcement
and a position that involves the performance of a safety
sensitive function as federally defined.
5)Nothing in this section shall prohibit an employer from
terminating the employment of a person who is impaired on the
property or premises of the place of employment or during the
hours of employment, because of the medical use of marijuana.
EXISTING LAW :
1)Provides, under Proposition 215 of 1996, the Compassionate Use
Act, the right to obtain and use marijuana for medical
purposes where medical use is deemed appropriate and has been
recommended by a physician and ensures that patients and their
primary caregivers are not subject to criminal prosecution or
sanction. Protects physicians from punishment for
recommending marijuana to a patient for medical purposes.
2)Requires the State Department of Health Services to establish
and maintain a voluntary program for the issuance of
identification cards to qualified patients and establishes
procedures under which a qualified patient with an
identification card may use marijuana for medical purposes.
Specifies the department's duties in this regard, including
developing related protocols and forms, and establishing
application and renewal fees for the program.
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3)Provides that employment having no specified term may be
terminated at the will of either party on notice to the other.
4)Provides that it shall be an unlawful employment practice, to
discriminate based on race, religious creed, color, national
origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, or sexual
orientation.
FISCAL EFFECT : None
COMMENTS : According to the author's office, the California
Supreme Court ruled recently that an employee using medical
marijuana with a doctor's recommendation may be fired because of
their status as a medical cannabis patient. The sponsor,
Americans for Safe Access, states that California already
prohibits the use of medical marijuana by qualified patients on
the property or premises of any place of employment or during
the hours of employment. The sponsor explains that this bill
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 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 in compliance with existing law.
In 1996, California voters passed Proposition 215, "to ensure
that seriously ill Californians have the right to obtain and use
marijuana for medical purposes." In 2003, SB 420
(Vasconcellos), Chapter 875, Statutes of 2003, was signed into
law to address issues that had arisen following the passage of
Proposition 215, including the establishment of a qualified
patient's right to use medical marijuana outside the workplace.
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. On January 24, 2008, the
California Supreme Court ruled that an employee using medical
marijuana with a doctor's recommendation as permitted by
California law may be fired solely because of their status as a
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medical cannabis patient. In its ruling, the Court stated,
"Nothing in the text or history of the Compassionate Use Act
suggests the voters intended the measure to address the
respective rights and duties of employers and employees. Under
California law, an employer may require preemployment drug tests
and take illegal drug use into consideration in making
employment decisions." Since the Compassionate Use Act was
silent regarding employment, the Court concluded that an
employer was legally permitted to fire an employee based on the
employee's use of medical marijuana. [Ross v. RagingWire
Telecommunications (2008) 42 Cal. 4th 920.]
Under the traditional common law rule, codified in Labor Code
Section 2922, employment in California having no specified
duration may be terminated at will of either party. This
presumption may be superseded by a contract, express or implied,
limiting the employer's right to discharge the employee. Absent
any contract, however, the employment is "at will," and the
employee can be fired with or without good cause. The right of
an employer to terminate an employee for any reason, or for no
reason, is limited only by public policy as reflected in statute
or other law. [Foley v. Interactive Data Corp. (1988) 47 Cal 3d
654.] In other words, in the absence of an explicit legal
limitation, employees in California can be discharged for any
reason or for no reason at all. This bill would add a new
limitation on the right of employers to fire an employee at
will. But the scope of that limitation is specified precisely
in the bill - discrimination based on the employee's status as a
medical marijuana patient or primary caregiver or a positive
drug test by a qualified patient if the medical marijuana use
does not occur in the workplace or during the hours of
employment. This bill does not, therefore, prevent an employer
from firing an employee who is intoxicated at work.
According to the California Hospital Association, employers have
a legitimate interest in determining whether applicants are
using illegal drugs. Despite the existence of the Compassionate
Use Act, allowing for the legal use of medical marijuana, the
California Chamber of Commerce likewise opposes this bill
because, it argues, marijuana is absolutely illegal.
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334
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FN: 0004256