California politicians are back at it again. The Senate is considering SB 129, a bill which would make it illegal for employers to discriminate against medical marijuana smokers.
This new legislation follows on the heels of Proposition 19, which came before California voters in November 2010. Proposition 19 would have legalized the possession and use of up to an ounce of marijuana. California voters rejected that proposition by a margin of 54% no and 46% yes.
If the law passes, employers would be forbidden from taking any adverse action against an employee on account of the fact that the employee is a user of medical marijuana, or the fact that the employee tests positive for the use of medical marijuana.
SB 129 provides an exception to the discrimination ban where the employee is in a “safety sensitive” position.
The proposed law would permit an employer to terminate an employee who is “impaired” on the job because of medical marijuana. Like Proposition 19, the term “impaired” is not defined in SB 129.
The law would give an aggrieved employee the right to file a discrimination lawsuit.
California politicians may not be able to solve the state’s fiscal problems, but the do seem able to come together when it comes to legalizing drug use. In October, Governor Schwarzenegger signed Senate Bill 1449. That law essentially decriminalizes possession of an ounce or less of marijuana. The law states that there can be no jail time or probation, and fines cannot exceed $100. This is the equivalent of an infraction, like for a traffic ticket.
At the federal level, marijuana is illegal. The Controlled Substances Act (21 U.S.C. section 811) has no provision for medical use of marijuana. Federal law characterizes marijuana as any other controlled substance, such as cocaine and heroin. The law places this drug on “Schedule I,” meaning that it is considered highly addictive and having no medical value.
The California Supreme Court addressed the question of employee rights in the context of marijuana use in 2008. The case, titled Ross v. Ragingwire, involves a job applicant fired after a drug test came back positive for marijuana. The applicant presented a doctor’s note purportedly giving him a prescription to use marijuana for medical treatment. He claimed his use was legal under Proposition 215, the Compassionate Use Act. The California Supreme Court rejected his claim, ruling that the law provided no employment law rights, and that the employer was entitled to take adverse action because the drug remained illegal under federal law.
SB 129 has been approved in a Senate committee and it awaits a vote by the full Senate. We will keep you posted on further developments.
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
Employment Law Attorneys for Businesses