BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 129|
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THIRD READING
Bill No: SB 129
Author: Leno (D)
Amended: As introduced
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/5/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SUBJECT : Medical marijuana: qualified patients:
employment
discrimination
SOURCE : American for Safe Access
DIGEST : This bill prohibits employment discrimination on
the basis of a person's status as a qualified patient
(medical marijuana user) or on the basis of the person's
positive drug test for marijuana, provided the person is a
qualified patient and the medical use of marijuana does not
occur at the place of employment or during hours of
employment. This bill contains an exception to the
prohibition when an employer hires a person in a
safety-sensitive position, as specified. This bill
creates, for a person who has suffered discrimination as
described above, a civil action for damages, injunctive
relief, attorney's fees and costs, and any other
appropriate equitable relief to protect the peaceable
exercise of the right or rights secured. This bill
contains a savings clause that states nothing in the
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section shall prohibit the employer from terminating the
employment, or taking other corrective action against a
person who is impaired on the property or premises of the
place of employment or during hours of employment because
of the medical use of marijuana.
ANALYSIS :
Existing law :
Existing law, Proposition 215 of 1996, the Compassionate
Use Act, provides the individual right to obtain and use
marijuana for medical purposes where medical use has been
deemed appropriate and recommended by a physician because
the person's health would benefit from the use of marijuana
in treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief. (Health &
Safety Code Section 11362.5(b)(1).)
Existing law removes the criminal penalties for cultivation
and possession of marijuana by qualified patients, who are
persons with a physician's written or oral recommendation
or approval to use marijuana for medical use, or by their
primary caregivers, and protects physicians from punishment
for recommending marijuana to a patient for medical
purposes. (Health & Safety Code Section 11362.5(b), (c)
and (d).)
Existing law provides that employment having no specified
term may be terminated at the will of either party on
notice to the other. (Labor Code Section 2922.)
Existing law 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. (Fair Employment
and Housing Act (FEHA), Gov. Code Section 12940 et seq.)
FEHA requires employers in their hiring decisions to take
into account the feasibility of making reasonable
accommodations to a person with a disability or medical
condition. (Government Code Section 12940(a)(2).)
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This bill makes it unlawful for an employer to discriminate
against a person in hiring, termination, or any term of
employment or otherwise penalize a person, based on (1) the
person's status as a qualified patient or (2) the qualified
patient's positive drug test where the medical use of
marijuana does not occur on the property or premises of the
employer or during the hours of employment.
This bill establishes a civil cause of action by a
qualified patient who suffered discrimination for damages
and injunctive relief, attorney's fees and costs, and other
equitable relief to protect the peaceable exercise of the
right or rights secured.
This bill does not apply when the employer employs a person
in a safety-sensitive position, which includes: a position
in which medical cannabis-affected performance would
clearly endanger the health and safety of others, as
defined; a position involving carrying a firearm; or a
position involving the operation, maintenance, or dispatch
of federal service vehicles.
This bill provides that an employer will not be prohibited
from terminating the employment of or taking corrective
action against a person who is impaired on the workplace
premises or who is impaired during working hours.
Background
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." Following passage of the proposition,
several issues arose, including the establishment of a
qualified patient's right to use medical marijuana outside
the workplace. SB 420 (Vasconcellos), Chapter 875,
Statutes 2003, the Medical Marijuana Program Act, was
enacted to clearly prohibit the use of medical marijuana by
qualified patients on the property or premises of any place
of employment or during the hours of employment. (Health
and Safety Code Section 11362.785.)
In September 2001, Gary Ross, a 45-year old disabled Air
Force veteran, was fired after failing an employer-mandated
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drug test. He was using medical marijuana on his doctor's
recommendation outside the workplace and had informed his
employer of that fact. He sued for unlawful discrimination
based on disability under the Fair Employment and Housing
Act (FEHA) and for wrongful termination in violation of
public policy. The trial court sustained a demurrer as to
both causes of action. The court of appeal affirmed, and
upon further appeal, the California Supreme Court ruled
that: (1) 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; and (2) FEHA does not protect the
employment rights of persons who test positive for illegal
drugs (which includes marijuana under state and federal
law). ( Ross v. RagingWire Telecommunications, Inc. (2008)
42 Cal.4th 920, 933.)
As a result of the Ross ruling, employers and employees
alike are uncertain as to what, if any, rights a qualified
patient has in maintaining a job that may require periodic
marijuana testing. In 2008, AB 2279 (Leno), of 2008,
attempted to clarify this ambiguity by providing that an
employee who is a qualified patient cannot be fired from a
job because of his or her status as a qualified patient or
for testing positive for marijuana. AB 2279 also provided
that an employee who is a qualified patient cannot be
discriminated against or penalized by an employer for
marijuana status or positive testing during the hiring
process. After passing both houses, AB 2279 was vetoed by
Governor Schwarzenegger who asserted that the bill would
interfere with employment decisions relating to marijuana
use.
This bill, which is substantially similar to AB 2279,
clarifies the law regarding the employment rights of
medical marijuana users, in light of the Supreme Court's
decision in Ross v. RagingWire .
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/6/11)
American Academy of Cannabinoid Medicine California
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Attorneys for Criminal Justice
California Communities United Institute
California Public Defenders Association
Crusaders for Patients Rights
Drug Policy Alliance
Law Enforcement Against Prohibition
Lawmen Protecting Patients
National Lawyers Guild
National Organization for the Reform of Marijuana Laws
San Francisco AIDS Foundation
OPPOSITION : (Verified 4/6/11)
Agricultural Council of California
Air Conditioning Sheet Metal Association
Air-conditioning and Refrigeration Contractors Association
Apartment Association, California Southern Cities
Associated General Contractors
CalChamber
Association for Los Angeles Deputy Sheriffs
California Association of Bed & Breakfast Inns
California Association of Health Facilities
California Association of Joint Powers Authority
California Attraction and Parks Association
California Chapter of the American Fence Association
California Chapters of the National Electrical Contractors
Association
California District Attorneys Association
California Farm Bureau Federation
California Fence Contractors' Association
California Fraternal Order of Police
California Grocers Association
California Hospital Association
California Hotel & Lodging Association
California Independent Grocers Association
California Landscape and Irrigation Council
California Legislative Conference of the Plumbing, Heating
and Piping
Industry
California Narcotic Officers' Association
California New Car Dealers Association
California Peace Officers Association
California Police Chiefs Association
California Retailers Association
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California State Sheriffs Association
Engineering Contractors' Association
Flasher Barricade Association
International Faith Based Coalition/Forces United
Long Beach Police Officers Association
Marin Builders' Association
National Federation of Independent Business
Orange County Apartment Association
Riverside Sheriffs Association
Santa Ana Police Officers Association
Take Bake America Campaign
Western Electrical Contractors Association
ARGUMENTS IN SUPPORT : According to the author's office,
on January 24, 2008 the California Supreme Court ruled in
Ross v. RagingWire Telecommunications 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 medical cannabis patient. This bill
makes it unlawful to discriminate in employment practices
based on an employee's legal use of medical marijuana
outside the work place and not during working hours.
In its ruling the California Supreme Court ignored the will
of the voters and the legislature by invalidating the
rights of over 250,000 patients to be free from
discrimination in employment. Most concerning was the fact
that Gary Ross was not employed in a safety-sensitive
position, did not use medical marijuana at the workplace,
and was not under the influence of marijuana 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 High Court did invite the legislature
to clarify its intent with respect to the employment rights
of medical cannabis patients.
This bill provides the clarification requested by the Court
and reverse a decision that puts every medical cannabis
patient in jeopardy of losing their job without due cause.
By amending the Health and Safety Code to prevent
discrimination against patients in hiring, termination, or
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any term of employment, except in the case of
safety-sensitive positions, this bill clearly establishes
that medical marijuana patients have a right to work. This
bill does not require an employer to accommodate marijuana
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 human fairness, medical
marijuana 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 chronic funding shortages. SB 129 is a reasonable
solution that protects patients, employers, and public
safety.
ARGUMENTS IN OPPOSITION : Opponents of this bill raise
numerous concerns with this bill:
Proposition 19 . Opponents contend that this bill is
similar to Proposition 19, the Regulate, Control and Tax
Cannabis Act of 2010 (Act). Opponents argue that "this
bill seeks to usurp the voice of the voters. . . . In
November 2010, the voters overwhelmingly rejected
Proposition 19, which would have provided marijuana users
with similar protections in the workplace." The Act would
have made marijuana use and possession legal, as specified,
"İp]rovided, however, that the existing right of an
employer to address consumption that actually impairs job
performance by an employee shall not be affected." (Prop.
19, Sec. 11304(c).) The Act failed to pass, with 53.5
percent of California voters voting against passage and
46.5 percent voting in favor of passage.
Effect on California employers with federal contracts or
grants . Opponents also maintain that this bill is in
direct conflict with the federal Drug-Free Workplace Act,
which they claim "requires federal contractors and grantees
to provide a drug free workplace, which includes
implementing a policy that prohibits the use or possession
of marijuana." The Drug-Free Workplace Act requires
employers to notify employees that "the unlawful
manufacture, distribution, dispensation, possession, or use
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of a controlled substance is prohibited in the grantee's
workplace" and that actions may be taken against employees
for violating this prohibition. (U.S.C., tit. 41, sec.
702.)
Chilling effect on employers . Opponents assert that under
this bill "an employer could smell the odor of marijuana
and observe the employee's red eyes . . . İh]owever, the
employer would have to wait to do anything until the
employee showed clear signs that the marijuana was
affecting or 'impairing' the employee's performance. The
subjective nature of the term 'impairment', coupled with
the private right of action . . . for any alleged
violation, would make employers hesitant to take any action
until there was objective evidence of impairment, such as
an industrial accident or injury."
Opponents assert that under this bill "an employer could
smell the odor of marijuana and observe the employee's red
eyes . . . İh]owever, the employer would have to wait to do
anything until the employee showed clear signs that the
marijuana was affecting or 'impairing' the employee's
performance. The subjective nature of the term
'impairment', coupled with the private right of action . .
. for any alleged violation, would make employers hesitant
to take any action until there was objective evidence of
impairment, such as an industrial accident or injury."
The California Hospital Association (CHA) has similar
concerns regarding the impairment provision in this bill.
"While CHA is sympathetic to the needs of patients who use
medical marijuana, hospitals are in a very different role
when faced with an applicant who has tested positive for
marijuana use. Patients, health care workers and our
communities expect hospitals to screen out applicants who
may appear for work in an impaired state. Requiring
hospitals to hire individuals who have tested positive for
marijuana use undermines their ability to ensure the
highest quality of care. ? The question of whether an
employee is 'impaired' is fact specific and the law
requires employers to have probable cause before seeking a
drug test."
Exemption of safety-sensitive positions . Opponents raise
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concerns that the exemption to exclude medical marijuana
users from safety-sensitive positions is too narrow and
subjective, rendering the exemption useless to employers.
"Specifically, a position is considered 'safety-sensitive'
and exempt from the protections of SB 129, only if (1) it
requires a 'level of trust and responsibility' higher than
normal; (2) a 'clear' risk of health and safety to others
is created if there are errors in judgment,
inattentiveness, diminished coordination, or composure; and
(3) the employee works independently or performs work
where mistakes cannot likely be prevented by a supervisor
or other employeeİs]. "As such, the opponents believe the
safety-sensitive exemption would lead to differing opinions
between employees and employers as to which positions would
fall under the safety-sensitive exemption.
RJG:do 4/7/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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