Although California legalized medical marijuana use in 1996 and recreational use in 2016, California employers have always been free to maintain zero-tolerance policies against all users. That could change soon as a result of Assembly Bill 2069 (“AB 2069”), which would amend the California Fair Employment and Housing Act to create a new class of protected persons: medical marijuana cardholders.
Specifically, the legislation would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” The legislation, however, would not protect employees who are “impaired on the property or premises of the place of employment or during the hours of employment because of the use of cannabis.” Likewise, it would not protect recreational users or employees whose employers would lose a monetary or licensing-related benefit under federal law or regulations should the employers hire or fail to discharge a medical-cannabis user. AB 2069 is part of a trend among state lawmakers, and certain courts, to go beyond merely legalizing marijuana use, particularly medical marijuana, and provide employment-related protections for medical marijuana users.
AB 2069 leaves some critical questions unanswered and thus, if signed into law, could result in litigation or at least uncertainty. For starters, it may be preempted by the federal Controlled Substances Act, which among other things makes marijuana possession illegal. It also does not clarify what its drafters mean by “impaired.” Is it a certain detectable level of THC in the body? And if so, what level? More fundamentally, how can employers distinguish between a mere positive test (which could have resulted from use the prior day) and actual impairment? California has not yet identified a standard measure for marijuana impairment.
Should AB 2069 pass, employers will need to update their drug-testing policies and educate employees about what is permissible under those policies, as it will no longer be permissible to refuse an applicant employment automatically based on his or her testing positive for marijuana use.