Let's be blunt.

The legalization of medical and recreational marijuana use in California has placed employers in a tough situation as they grapple with crafting and enforcing workplace drug policies that comply with an area of the law that is largely unsettled.

Marijuana remains a Schedule I drug under federal law, and California employers may maintain and enforce policies prohibiting its use. And California employers are not required to accommodate an employee’s use of medical marijuana while at work.

But that may change soon. In February 2018, a bill known as AB-2069 was proposed that would amend the California Fair Employment and Housing Act to make users of medical marijuana a legally protected class. This means they would be protected from employment discrimination and entitled to reasonable accommodation. 

AB-2069 is still working its way through the legislature. Meanwhile, here is an overview of the evolution of medical marijuana law in California.

In 1996, California became the first state to legalize medical marijuana. Proposition 215 legalized the cultivation and use of medical marijuana for the treatment of illnesses “for which marijuana provides relief." Recognizing the need for a distribution system, the California legislature then passed SB-420 in 2004, permitting patients to form nonprofit medical cannabis collectives and protecting the cultivation and distribution of marijuana for medical purposes.

As a result of Proposition 215 and SB 420, Californians were able to easily obtain medical marijuana prescriptions for seemingly any medically related reason.

In 2008, the California Supreme Court ruled in Ross v. RagingWire Telecommunications, Inc., that California law does not prohibit an employer from refusing to employ, much less accommodate, a medical marijuana user, even if the marijuana use is permitted under California law. The state Supreme Court held that the state’s disability discrimination laws do not require employers to accommodate illegal drug use, even if prescribed for medical purposes. And because marijuana is still illegal under federal law, the employer in this case was not required to accommodate the plaintiff's use of medical marijuana.

The growing acceptance of marijuana use culminated in 2016 with the passage of Proposition 64, which legalized the recreational use of marijuana in California. The sale of recreational marijuana became legal in California on January 1, 2018. 

Eleven states currently have laws protecting medical cannabis patients from employment discrimination: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island, although the level of protection varies from state to state. California -- surprisingly -- does not currently have any such protections. But if enacted, AB-2069 would undoubtedly create a host of issues for employers with operations in California.

The pending AB-2069 includes two critical limitations. First, it explicitly states that employers may discipline or terminate an employee who “is impaired” at work or during work hours due to the use of cannabis. But it is difficult to know when someone is under the influence of cannabis. Unlike alcohol, where Breathalyzer tests may show the exact level in a person’s blood, there are no available tests that show the level of impairment for marijuana at a specific point in time. Drug tests show only that marijuana was consumed within the past 30 days or so. Thus, as a practical matter, it may be difficult for employers to prove that an employee was under the influence of marijuana at work. Second, AB-2069 acknowledges that because marijuana remains illegal under federal law, California employers must be allowed to refuse to hire or may terminate a marijuana user if employing the person would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

For now, employers with operations in California may continue to treat medical marijuana as an illegal drug that need not be accommodated in the workplace. But even if AB-2069 does not pass, we are likely to see similar bills seeking to protect medical marijuana users from employment discrimination.

Employers with California operations would be wise to plan ahead and consider policies for future implementation in the event that California joins the growing list of states protecting medical cannabis patients in the employment context.

Image Credit: Medical marijuana office from flickr, Creative Commons license, by Damian Gadal.