The California State Legislature, which has long been a leader among states in decriminalizing marijuana, is facing another vote that would further normalize the use of cannabis among its citizens. If the bill is successful, it will directly affect the employment practices of every business in the state.
Assembly Bill 2069 would make it illegal for an employer to fire an employee or not hire an applicant who tests positive for marijuana if they possess a legal medical marijuana identification card. The bill, which was introduced on February 7, 2018 by Assembly Member Ron Bonta, is currently pending in the legislature.
If it passes, the law would only affect users of medicinal marijuana. Employers would retain the right to take disciplinary action against or dismiss an employee without a valid medical marijuana identification card who tests positive for marijuana. Also, employers can still insist that their workers are not impaired on the job, regardless of their legal status to use marijuana for medicinal purposes.
The ongoing issue employers face; however, is that there is no current means by which to determine whether someone is impaired by marijuana while on the job. Current tests only show if marijuana metabolites are present. Because marijuana can be detected days or even weeks following consumption depending on the duration and frequency of use, there’s no empirical way to pinpoint how recently the employee used the drug.
California was the first state to legalize medical marijuana in 1996 via the Compassionate Use Act . As the issue of medical marijuana evolved, a bill was introduced in 2008 to offer essentially the same protections to medical users as the current pending bill, AB 2069. The 2008 bill was developed after the California Supreme Court ruled that year in favor of a telecommunications company that fired a retired U.S. Air Force veteran over his medical marijuana use.
As reported by TheCannifornian.com a collective of reporters from newsrooms throughout California, “the ruling was based, in part, on the fact that employment rights weren’t addressed in the state’s medical marijuana law” as defined under the Compassionate Use Act.
Because there were no protections spelled out within the 1996 law, the company had a legal right to terminate the man, the court ruled. The bill that followed would have prevented the same thing from happening in the future. It passed through the legislature, but was vetoed by then Governor, Arnold Schwarzenegger.
These proposed employment discrimination protections aren’t the only thing business owners need to be following. Assemblyman Bonta also has another bill pending in the legislature, one that would affect the amount of information business owners could collect about potential employees.
Assembly Billy 1793 would wipe clean the records of Californians convicted of any marijuana-related offense that would now be legal under the new guidelines. This would include people found guilty of possession, cultivation and distribution of marijuana at a certain level.
Regardless of whether the bill becomes law, many local municipalities are taking similar steps in relation to marijuana crimes committed pre-legalization. San Francisco District Attorney George Gascon announced in January that his office will expunge “more than 3,000 misdemeanor marijuana convictions dating back to 1975, and will review nearly 5,000 more felony cases for possible resentencing.”
These changes could have far-reaching effects on hiring practices for many employers, especially those in industries related to security, health care and safety. It is unclear whether Californians whose records will be expunged will have to divulge that information when applying for certain kinds of jobs, or whether these changes will bar employers from asking questions about previous convictions. If a felony marijuana case is reclassified as a misdemeanor, an employer may never find out about it.
The assembly bill protecting medical marijuana users is scheduled to be introduced in the fiscal committee meeting on March 10, 2018. It is unclear whether that bill, or the expungement bill, have a chance at success.