Will Cannabis Users Get Workplace Protections in California?

Years after California legalized recreational use of cannabis, employers continue to struggle with determining their rights and liabilities regarding employees who engage in that activity.

In 2016, a majority of California voters approved Proposition 64, The Control, Regulate and Tax Adult Use of Marijuana Act. Prop 64 permits adults 21 years of age and older to possess and grow specified amounts of cannabis for recreational use.

That said, Prop 64 did not address the myriad implications of allowing recreational use of cannabis, including employers' rights and obligations to employees who choose to engage in that activity. Further confusing the issue has been employees who use marijuana to treat an illness pursuant to the Compassionate Use Act of 1996.

Recently, Assemblymen Rob Bonta, D-Alameda, introduced AB 2355. The bill seeks to make it an unlawful employment practice for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate against an employee because of the employee's status as a medicinal cannabis user.

Bonta introduced a similar bill in 2018, which failed. In an apparent effort to secure a different result for AB 2355, Bonta has included some exceptions to the proposed protections.

First, employers may still refuse to hire applicants or terminate current employees if retaining the person would cause the employer to:

• Lose a monetary or licensing-related benefit.
• Incur damages under federal law or regulations, including the Department of Transportation regulations.

Further, if the employer requires all employees and job applicants to be drug and alcohol free for legitimate safety reasons as required by federal or state laws, the employer will not be subject to the requirements of AB 2355.

The bill also specifically provides that 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.

With these more specific carveouts, AB 2355 may have a higher likelihood of success than Bonta's prior attempt at legislating this issue.

Even if the bill does not pass, employers should still ensure they are complying with other requirements of California law that pertain to employee drug testing and disability accommodation.

Elyza P. Heraldez is an attorney with Jackson Lewis in Irvine, Calif. Patrick C. Stokes is an attorney with Jackson Lewis in San Jose, Calif. © 2020 Jackson Lewis. All rights reserved. Reposted with permission.