Since the approval of Proposition 64 by California voters in 2016, and the corresponding change in attitude toward recreational cannabis use, employers have grappled with cannabis regulation in the workplace. Although employers maintain the right to enforce a drug-free workplace post-Prop 64, cannabis regulation in the workplace is tricky.
Under current law, California employers have no duty to accommodate medicinal use of cannabis at work, even if the drug is legally prescribed for a disability. They may also refuse to hire an applicant who tests positive for cannabis. But that may soon change if a bill pending before the California legislature becomes law.
California State Assemblymember Rob Bonta recently introduced Assembly Bill 2355 (AB 2355), which would prohibit employers from refusing to hire or employ a person, or otherwise discriminate against a person, because of that person’s status as a medical cannabis patient. Additionally, AB 2355 would grant employees who use medical cannabis while employed the same rights to reasonable accommodation and the associated interactive process as are provided to workers prescribed other legal drugs.
However, employers would still have some protections under AB 2355:
- Employers would be exempt from the bill’s provisions if the employer requires its employees and job applicants to be drug and alcohol free for legitimate safety reasons as mandated by federal or state law and submit to drug testing as required by those laws;
- Employers may still refuse to hire or discharge an employee if retaining the employee would reasonably cause the employer to lose a monetary or licensing-related benefit or incur damages under federal law or regulation; and
- Employers would still have a right to refuse accommodation, suspend an employee, or take any other lawful action if the employer discovers the employee is using or impaired by medical cannabis at work or during working hours.
It remains to be seen how AB 2355 will fare in the Assembly. Assemblymember Bonta introduced a similar bill in 2018, which ultimately failed. With the specific exemptions for employers described above however, AB 2355 may have greater success. The bill must pass the Assembly by May 29 in order to advance this year. And ultimately, it may be up to Governor Gavin Newsom to decide if it becomes law.