BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 129 (Leno)
          As Introduced 
          Hearing Date: March 29, 2011
          Fiscal: No
          Urgency: No
          TW
                    

                                        SUBJECT
                                           
                      Medical Marijuana:  Qualified Patients:  
                              Employment Discrimination

                                      DESCRIPTION  

          This bill would prohibit employment discrimination on the basis 
          of a person's status as a qualified patient (medical marijuana 
          user) or on the basis of the person's positive drug test for 
          marijuana, provided the person is a qualified patient and the 
          medical use of marijuana does not occur at the place of 
          employment or during hours of employment.  This bill contains an 
          exception to the prohibition when an employer hires a person in 
          a safety-sensitive position, as specified.

          This bill would create, for a person who has suffered 
          discrimination as described above, a civil action for damages, 
          injunctive relief, attorney's fees and costs, and any other 
          appropriate equitable relief to protect the peaceable exercise 
          of the right or rights secured.

          Finally, this bill contains a savings clause that states nothing 
          in the section shall prohibit the employer from terminating the 
          employment, or taking other corrective action against a person 
          who is impaired on the property or premises of the place of 
          employment or during hours of employment because of the medical 
          use of marijuana.

                                      BACKGROUND  

          In 1996, California voters passed Proposition 215, the 
          Compassionate Use Act, "to ensure that seriously ill 
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          Californians have the right to obtain and use marijuana for 
          medical purposes."  Following passage of the proposition, 
          several issues arose, including the establishment of a qualified 
          patient's right to use medical marijuana outside the workplace.  
          SB 420 (Vasconcellos, Ch. 875, Stats. 2003), the Medical 
          Marijuana Program Act, was enacted to clearly prohibit the use 
          of medical marijuana by qualified patients on the property or 
          premises of any place of employment or during the hours of 
          employment.  (Health & Saf. Code Sec. 11362.785.)
           
          In September 2001, Gary Ross, a 45-year old disabled Air Force 
          veteran, was fired after failing an employer-mandated drug test. 
           He was using medical marijuana on his doctor's recommendation 
          outside the workplace and had informed his employer of that 
          fact.  He sued for unlawful discrimination based on disability 
          under the Fair Employment and Housing Act (FEHA) and for 
          wrongful termination in violation of public policy.  The trial 
          court sustained a demurrer as to both causes of action.  The 
          court of appeal affirmed, and upon further appeal, the 
          California Supreme Court ruled that: (1) nothing in the text or 
          history of the Compassionate Use Act suggests the voters 
          intended the measure to address the respective rights and duties 
          of employers and employees; and (2) FEHA does not protect the 
          employment rights of persons who test positive for illegal drugs 
          (which includes marijuana under state and federal law).  (Ross 
          v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 
          933.)

          As a result of the Ross ruling, employers and employees alike 
          are uncertain as to what, if any, rights a qualified patient has 
          in maintaining a job that may require periodic marijuana 
          testing.  In 2008, AB 2279 (Leno, 2008) attempted to clarify 
          this ambiguity by providing that an employee who is a qualified 
          patient cannot be fired from a job because of his or her status 
          as a qualified patient or for testing positive for marijuana.  
          AB 2279 also provided that an employee who is a qualified 
          patient cannot be discriminated against or penalized by an 
          employer for marijuana status or positive testing during the 
          hiring process.  After passing both houses, AB 2279 was vetoed 
          by Governor Schwarzenegger who asserted that the bill would 
          interfere with employment decisions relating to marijuana use.  
          (See Comment 7.) 

          This bill, which is substantially similar to AB 2279, would 
          clarify the law regarding the employment rights of medical 
          marijuana users, in light of the Supreme Court's decision in 
                                                                      



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          Ross v. RagingWire. 

                                CHANGES TO EXISTING LAW
           
           Existing law  , Proposition 215 of 1996, the Compassionate Use 
          Act, provides the individual right to obtain and use marijuana 
          for medical purposes where medical use has been deemed 
          appropriate and recommended by a physician because the person's 
          health would benefit from the use of marijuana in treatment of 
          cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, 
          arthritis, migraine, or any other illness for which marijuana 
          provides relief.  (Health & Saf. Code Sec. 11362.5(b)(1).)  

           Existing law  removes the criminal penalties for cultivation and 
          possession of marijuana by qualified patients, who are persons 
          with a physician's written or oral recommendation or approval to 
          use marijuana for medical use, or by their primary caregivers, 
          and protects physicians from punishment for recommending 
          marijuana to a patient for medical purposes.  (Health & Saf. 
          Code Sec. 11362.5(b), (c) and (d).)

           Existing law  provides that employment having no specified term 
          may be terminated at the will of either party on notice to the 
          other.  (Labor Code Sec. 2922.)

           Existing law  provides that it shall be an unlawful employment 
          practice to discriminate based on race, religious creed, color, 
          national origin, ancestry, physical disability, mental 
          disability, medical condition, marital status, sex, age, or 
          sexual orientation.  (Fair Employment and Housing Act (FEHA), 
          Gov. Code Sec. 12940 et seq.)  FEHA requires employers in their 
          hiring decisions to take into account the feasibility of making 
          reasonable accommodations to a person with a disability or 
          medical condition.  (Gov. Code Sec. 12940(a)(2).)

           This bill  would make it unlawful for an employer to discriminate 
          against a person in hiring, termination, or any term of 
          employment or otherwise penalize a person, based on (1) the 
          person's status as a qualified patient or (2) the qualified 
          patient's positive drug test where the medical use of marijuana 
          does not occur on the property or premises of the employer or 
          during the hours of employment. 

           This bill  would establish a civil cause of action by a qualified 
          patient who suffered discrimination for damages and injunctive 
          relief, attorney's fees and costs, and other equitable relief to 
                                                                      



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          protect the peaceable exercise of the right or rights secured. 

           This bill  would not apply when the employer employs a person in 
          a safety-sensitive position, which would include: a position in 
          which medical cannabis-affected performance would clearly 
          endanger the health and safety of others, as defined; a position 
          involving carrying a firearm; or a position involving the 
          operation, maintenance, or dispatch of federal service vehicles. 


           This bill  would expressly provide that an employer would not be 
          prohibited from terminating the employment of or taking 
          corrective action against a person who is impaired on the 
          workplace premises or who is impaired during working hours.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            On January 24, 2008 the California Supreme Court ruled in Ross 
            v. RagingWire Telecommunications that an employee using 
            medical marijuana with a doctor's recommendation as permitted 
            by California law may be fired solely because of their status 
            as a medical cannabis patient.  SB 129 would make it unlawful 
            to discriminate in employment practices based on an employee's 
            legal use of medical marijuana outside the work place and not 
            during working hours.

            In its ruling the California Supreme Court ignored the will of 
            the voters and the legislature by invalidating the rights of 
            over 250,000 patients to be free from discrimination in 
            employment.  Most concerning was the fact that Gary Ross was 
            not employed in a safety-sensitive position, did not use 
            medical marijuana at the workplace, and was not under the 
            influence of marijuana at work.  In essence, the Court said 
            that Ross could be fired simply because of his status as a 
            patient using doctor recommended medication.

            In denying Ross certain protections from employment 
            discrimination, the High Court did invite the legislature to 
            clarify its intent with respect to the employment rights of 
            medical cannabis patients.

            SB 129 will provide the clarification requested by the Court 
                                                                      



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            and reverse a decision that puts every medical cannabis 
            patient in jeopardy of losing their job without due cause.  By 
            amending the Health and Safety Code to prevent discrimination 
            against patients in hiring, termination, or any term of 
            employment, except in the case of safety-sensitive positions, 
            SB 129 clearly establishes that medical marijuana patients 
            have a right to work.  This bill does not require an employer 
            to accommodate marijuana impairment or use in the workplace, 
            and does not require the employer to violate any state or 
            federal laws.

            The policy of this state should be to encourage gainful 
            employment for those patients who are able to work.  In 
            addition to being an issue of basic human fairness, medical 
            marijuana patients who lose their jobs could become an 
            additional burden for state general assistance, MediCal, and 
            other social service programs that are already stressed by 
            chronic funding shortages.  SB 129 is a reasonable solution 
            that protects patients, employers, and public safety.

          2.    The Compassionate Use Act and federal law remain in 
          conflict
             
          This bill would provide clarity to the conflict currently 
          existing in California law between California employers and 
          employees regarding the ability of employees to utilize the 
          provisions of the Compassionate Use Act.  California voters 
          enacted the Compassionate Use Act in 1996 in order to permit the 
          use of marijuana for medical purposes by persons deemed 
          qualified by their physicians.  Marijuana was then, and still 
          is, an illegal drug both under federal and state law, and its 
          use, possession, distribution, cultivation, or sale carries 
          criminal penalties.  However, under federal law, possession of 
          marijuana, even by medical users, continues to be a crime:  the 
          federal Controlled Substances Act provides that, except as 
          provided, it is unlawful for any person knowingly or 
          intentionally?to manufacture, distribute, or dispense, or 
          possess with intent to manufacture, distribute, or dispense a 
          controlled substance.  (21 U.S.C. Sec. 841(a).)  The only 
          exception provided in the Controlled Substances Act for 
          marijuana, a Schedule 1 drug, is for its use in 
          government-controlled research projects.

          Lawsuits filed by the United States against "medical cannabis 
          dispensaries" have resulted in the complete rebuke of efforts by 
          supporters of medical marijuana use to create a "medical 
                                                                      



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          necessity" exception to the Controlled Substances Act's 
          prohibition on manufacturing and distributing marijuana.  
          (United States v. Oakland Cannabis Buyers' Cooperative et al. 
          (2001) 532 U.S. 483, 491-485.)  

          Proponents of this bill, however, contend that federal law does 
          not stand as an obstacle to SB 129, as further discussed in 
          Comment 4b.

          3.    Ross v. RagingWire Telecommunications, Inc:  FEHA does not 
            provide protection to medical marijuana users at work  

          This bill would provide protections for California employees who 
          qualify for medical marijuana under the provisions of the 
          Compassionate Use Act.  In Ross v. RagingWire 
          Telecommunications, Inc. (2008) 42 Cal.4th 920, the California 
          Supreme Court revisited the ballot arguments proffered by 
          supporters of Proposition 215 (the initiative that enacted the 
          Compassionate Use Act) and declared that "Ýn]othing in the act's 
          text or history indicates the voters intended to articulate any 
          policy concerning marijuana in the employment context, let alone 
          a fundamental public policy requiring employers to accommodate 
          marijuana use by employees."  (Id. at p. 932.)  Further, the 
          court said, an examination of the ballot arguments did not put 
          defendant employer (and other employers) on notice that 
          employers would thereafter be required under FEHA to accommodate 
          the use of marijuana.  (Id.)

          Gary Ross, the Ross plaintiff, also contended that the 
          Legislature's passage of SB 420 that enacted Health and Safety 
          Code Section 11362.785 evidences the legislative intent of the 
          Compassionate Use Act to require employers to accommodate 
          employees' use of medical marijuana at home.  That section 
          provides:

            Nothing in this article shall require any accommodation of any 
            medical use of marijuana on the property or premises of any 
            place of employment or during the hours of employment or on 
            the property or premises of any jail, correctional facility, 
            or other type of penal institution in which prisoners reside 
            or persons under arrest are detained.  (Health and Saf. Code 
            Sec. 11362.785(a).)

           Answering plaintiff's argument that Health and Safety Code 
           Section 11362.785 at least inferred a requirement of 
           accommodation under FEHA, the court said, "Ýe]ven without 
                                                                      



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           inferring a requirement of accommodation, the statute can be 
           given literal effect as negating any expectation that the 
           immunity to criminal liability for possessing marijuana granted 
           in the Compassionate Use Act gives medical users a civilly 
           enforceable right to possess the drug at work or in custody?In 
           any event, ?we do not believe that Health and Safety Code 
           section 11362.785, subdivision (a), can reasonably be 
           understood as adopting such a requirement silently and without 
           debate."  (Ross v. RagingWire Telecommunications, Inc., supra, 
           42 Cal.4th at p. 931.) 

          4.    SB 129 would prohibit discrimination in employment based on 
            status as a medical marijuana user

           This bill would protect California employees using medical 
          marijuana during non-working hours from discrimination by 
          employers on the basis of the employee's status as a qualifying 
          patient.  Under existing law, the Compassionate Use Act does not 
          require any accommodation of any medical use of marijuana on the 
          property or premises of any place of employment or during the 
          hours of employment, or on the property or premises of any jail, 
          correctional facility, or other type of penal institution in 
          which prisoners reside or persons under arrest are detained.  
          (Health and Saf. Code Sec. 11362.785.)  Proponents read this 
          provision as current law prohibiting use of medical marijuana by 
          qualified patients at the workplace or during working hours.

          Based on the Court's holding in Ross v. RagingWire that Health 
          and Safety Code Section 11362.785 does not infer that an 
          accommodation under FEHA is required, this bill would create a 
          standalone statute prohibiting discrimination in employment 
          based on status as a qualified medical marijuana user or on the 
          basis of a positive marijuana drug test when use of marijuana 
          occurred outside the employment workplace or during non-working 
          hours.

            a.    Discrimination on the basis of status
             
            SB 129 would prohibit an employer from discriminating against 
            a person in hiring, termination, or in any term or condition 
            of employment, or otherwise penalizing a person on the basis 
            of that person's status as a qualified patient (medical 
            marijuana user).  

            Gary Ross and other medical marijuana users are protected 
            under the Compassionate Use Act because the voters decided, in 
                                                                      



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            passing Proposition 215, to disagree with Congress' assessment 
            that marijuana has a "high potential for abuse," that it lacks 
            any "currently accepted medical use in treatment in the United 
            States," and that it lacks "accepted safety for use?under 
            medical supervision." (Id. at p. 927, citing 21 U.S.C. Sec. 
            812(b)(1) and Gonzales v. Raich (2005) 545 U.S. 1, 14.)  
            Instead, the voters viewed the possibility of beneficial 
            medical use of marijuana as sufficient basis for exempting 
            from criminal liability under state law patients whose 
            physicians recommend the drug.  

            Proponents contend that it does not make sense to allow a 
            person to use medical marijuana to control pain, for example, 
            and be immune from criminal liability, just to be deprived of 
            the opportunity to work and be self-supporting because the 
            Compassionate Use Act did not mention employment law in the 
            findings and declarations that precede the Act's operative 
            provisions.  And since it was the California Supreme Court's 
            view that the follow up legislation, SB 420, did not clearly 
            state legislative intent to protect the employment rights of 
            medical marijuana users, SB 129 is the author's and 
            proponents' response to the call for clarity.

            b.    Discrimination on the basis of positive marijuana drug 
            test  

            Under SB 129, an employer also may not discriminate against a 
            qualified patient who tests positive for marijuana, as long as 
            the medical use of marijuana does not occur on the premises of 
            the place of employment or during the hours of employment.

            FEHA does not require employers to accommodate the use of 
            illegal drugs. (Ross v. RagingWire, supra, citing Loder v. 
            City of Glendale (1997) 14 Cal.4th 846).  In Loder, the 
            California Supreme Court concluded that an employer can 
            require prospective employees to undergo testing for illegal 
            drugs and alcohol and an employer can have access to test 
            results, without violating California's Confidentiality of 
            Medical Information Act.  (Civil Code Sec. 56 et seq.)  Thus, 
            the Loder court declared that employers may deny employment to 
            persons who test positive for illegal drugs and confirmed in 
            Ross that FEHA was unavailable as a source of protection for 
            the employment rights of medical marijuana users.

            Proponents contend, however, that except for the federal 1991 
            Omnibus Transportation Employee Testing Act that requires 
                                                                      



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            employers to test all workers who apply for or currently hold 
            "safety sensitive" positions in the transportation industry, 
            there are no state or federal laws that require private 
            businesses to have drug testing programs.  Even the 1988 
            Drug-Free Workplace Act that requires companies with federal 
            contracts in excess of $25,000 to show they have made 
            appropriate efforts to maintain a drug-free workplace does not 
            require drug testing of job applicants or current employees.  
            In fact, a report by the American Civil Liberties Union, "Drug 
            Testing: A Bad Investment" (September 1999) states that while 
            no court has held an employer legally liable for not having a 
            drug testing program, employers have incurred substantial 
            legal costs defending their drug testing programs against 
            workers' claims of wrongful dismissal.

            Proponents argue that the federal Drug-Free Workplace Act does 
            not place any general obligation on employers to drug test 
            their employees, much less to fire them for a positive drug 
            test for marijuana (citing Parker v. Atlanta Gas Light Co. 
            (S.D. Ga. 1993) 818 F.Supp. 345, 347), but acknowledge that 
            under the Omnibus Transportation Employee Testing Act, 
            regulations of the federal Department of Transportation do 
            require employers to drug test employees in safety sensitive 
            positions and to remove them from such positions if they test 
            positive for the illegal use of drugs.

            SB 129 would provide that no employer may discriminate against 
            a qualified patient who tests positive for marijuana use, so 
            long as the medical use of marijuana occurs outside the 
            property or premises of work or during non-working hours.  In 
            other words, a worker who is a medical marijuana user may use 
            it anyplace but work and anytime but working hours.  The only 
            question left would be whether the use of medical marijuana 
            impairs the ability of the employee who is a qualified patient 
            to perform his or her work.  That question is resolved below.

             c.    No protection from employment discrimination if employee 
               is impaired because of medical use of marijuana
              
             This bill contains a savings clause that states nothing in 
             the section shall prohibit an employer from terminating the 
             employment of, or taking other corrective action against, a 
             person who is impaired on the property or premises of the 
             place of employment or during hours of employment because of 
             the medical use of marijuana.

                                                                      



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             With this provision, the author and proponents are cognizant 
             of the possible effects of marijuana on the performance of an 
             employee, and thus provide employers with the right to 
             exercise their business judgment in taking corrective action 
             when that employee is impaired and cannot function at an 
             acceptable level.  

             It should be noted that the employer's prerogative to drug 
             test for illicit drugs to determine whether an employee is 
             impaired due to drug use is applicable to all employees, not 
             just to those who are impaired due to medical marijuana use, 
             and that the employer's right to exercise business judgment 
             in taking corrective action, including termination, applies 
             to all employees.

             d.    No prohibition against discrimination on the basis of a 
               positive drug test for marijuana where employment is for a 
                                                                                       safety sensitive position  

            The protection established by SB 129 for a person who tests 
            positive for marijuana where the medical use of the drug 
            occurs outside of the employment premises or during nonworking 
            hours would not be available in "safety sensitive" jobs.  As 
            described in the federal Omnibus Transportation Employee 
            Testing Act, these safety sensitive jobs originally were those 
            associated with aviation, railroad, and mass transportation 
            employees.

            Under this bill, a "safety-sensitive" position means a 
            position in which medical cannabis-affected performance could 
            clearly endanger the health and safety of others, and shall 
            have the following general characteristics:

                     Its duties involve a greater than normal level of 
                 trust, responsibility for, or impact on the health and 
                 safety of others.
                     Errors in judgment, inattentiveness, or diminished 
                 coordination, dexterity, or composure while performing 
                 its duties could clearly result in mistakes that would 
                 endanger the health and safety of others.
                     An employee in a position of this nature works 
                 independently, or performs tasks of a nature that it 
                 cannot safely be assumed that mistakes like those 
                 described above could be prevented by a supervisor or 
                 another employee.

                                                                      



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            A "safety-sensitive" position also includes a position that 
            involves the performance of a "safety-sensitive function," 
            which is specified as described in:

               (1)    Section 655.4 of Title 49 of the Code of Federal 
                 Regulations:

                               Operating a revenue service vehicle;
                               Operating a nonrevenue service vehicle, 
                      when required to be operated by a holder of a 
                      commercial driver's license;
                               Controlling dispatch or movement of a 
                      revenue service vehicle;
                               Maintaining (including repairs, overhaul, 
                      and rebuilding) a revenue service vehicle or 
                      equipment used in revenue service, with exception 
                      for specified employers; and
                               Carrying a firearm for security purposes.

               (2)          Section 13951(d) of the Government Code, the 
                 following law enforcement personnel:  every district 
                 attorney, municipal police department, sheriff's 
                 department, district attorney's office, county probation 
                 department, and social services agency, the Department of 
                 Justice, the Department of Corrections, the Department of 
                 the Youth Authority, the Department of the California 
                 Highway Patrol, the police department of any campus of 
                 the University of California, California State 
                 University, or community college, and every agency of the 
                 State of California expressly authorized by statute to 
                 investigate or prosecute law violators.

           In short, employers hiring for all of the above jobs may not 
           only require drug testing but also refuse to hire or take 
           adverse employment action against a person who tests positive 
           for marijuana, even if the person is a qualified medical 
           marijuana user whose use of medical marijuana occurs any place 
           but the work location or any time but working hours.

           However, under this bill, an employer would still be prohibited 
           from discriminating against the above "safety sensitive" 
           employees or potential employees on the basis of the person's 
           status as a qualified patient, i.e., a medical marijuana user.

          5.    Civil action for damages based on discrimination against 
            qualified patient 
                                                                      



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           This bill would establish a civil action for a person who 
          suffered discrimination prohibited by the bill, i.e., for a 
          qualified patient (a medical marijuana user), to seek damages, 
          injunctive relief, reasonable attorney's fees and costs, and 
          "any other appropriate equitable relief to protect the peaceable 
          exercise of the right or rights secured."  

          Under the state's employment discrimination laws, an employee 
          may file a complaint of unlawful employment practice with the 
          Department of Fair Employment and Housing (DFEH) or seek relief 
          directly in superior court for wrongful termination or adverse 
          employment action.  Filing a complaint with the DFEH has the 
          advantage of a state agency investigating allegations of 
          discriminatory action by the employer and getting the benefit of 
          the state agency's findings before going to court pursuant to a 
          right to sue letter issued by the agency. 

          6.  Opponents' concerns  
             
           Opponents of this bill raise numerous concerns with this bill.

              a.   Proposition 19  

            Opponents contend that this bill is similar to Proposition 19, 
            the Regulate, Control and Tax Cannabis Act of 2010 (Act).  
            Opponents argue that "this bill seeks to usurp the voice of 
            the voters. . . . In November 2010, the voters overwhelmingly 
            rejected Proposition 19, which would have provided marijuana 
            users with similar protections in the workplace." The Act 
            would have made marijuana use and possession legal, as 
            specified, "Ýp]rovided, however, that the existing right of an 
            employer to address consumption that actually impairs job 
            performance by an employee shall not be affected."  (Prop. 19, 
            Sec. 11304(c).)  The Act failed to pass, with 53.5 percent of 
            California voters voting against passage and 46.5 percent 
            voting in favor of passage.  In response, the author argues 
            that the voters rejected legalizing marijuana for non-medical 
            use, but they did not indicate a change in support for the 
            legal use of medical marijuana in accordance with state law.  
            This bill does not authorize employees to use or possess 
            medical marijuana at the workplace but rather provides an 
            exemption to employee protections under this bill if medical 
            marijuana use occurs on workplace property or during the hours 
            of employment.

                                                                      



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              b.   Effect on California employers with federal contracts or 
               grants  
                
             Opponents also maintain that this bill is in direct conflict 
            with the federal Drug-Free Workplace Act, which they claim 
            "requires federal contractors and grantees to provide a drug 
            free workplace, which includes implementing a policy that 
            prohibits the use or possession of marijuana." The Drug-Free 
            Workplace Act requires employers to notify employees that "the 
            unlawful manufacture, distribution, dispensation, possession, 
            or use of a controlled substance is prohibited in the 
            grantee's workplace" and that actions may be taken against 
            employees for violating this prohibition.  (U.S.C., tit. 41, 
            sec. 702.)  In response, the author argues that other states 
            with medical marijuana protections, i.e., Arizona, Maine, and 
            Rhode Island, have not reported losing federal contracts as a 
            result of these employment discrimination protections.  As 
            discussed in Comment 6a, this bill does not authorize 
            employees to use or possess medical marijuana at work, and 
            exempts from protection under this bill an employee's use of 
            medical marijuana at the workplace.  Federal regulations 
            regarding use and possession of medical marijuana at work 
            still would apply.   

              c.   Chilling effect on employers
                
            Opponents assert that under this bill "an employer could smell 
            the odor of marijuana and observe the employee's red eyes . . 
            . Ýh]owever, the employer would have to wait to do anything 
            until the employee showed clear signs that the marijuana was 
            affecting or 'impairing' the employee's performance.  The 
            subjective nature of the term 'impairment', coupled with the 
            private right of action . . . for any alleged violation, would 
            make employers hesitant to take any action until there was 
            objective evidence of impairment, such as an industrial 
            accident or injury."  In response, the author argues that this 
            bill does not require employers to do anything unprecedented.  
            This bill provides an exemption to employee protections if the 
            employee is impaired at work.  If marijuana odor and red eyes 
            are observed, the employer should investigate whether the 
            employee's work performance is impaired rather than 
            potentially mistake marijuana odor and red eyes as evidence of 
            the employee's medical marijuana use.

            The California Hospital Association (CHA) has similar concerns 
            regarding the impairment provision in this bill.  "While CHA 
                                                                      



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            is sympathetic to the needs of patients who use medical 
            marijuana, hospitals are in a very different role when faced 
            with an applicant who has tested positive for marijuana use.  
            Patients, health care workers and our communities expect 
            hospitals to screen out applicants who may appear for work in 
            an impaired state.  Requiring hospitals to hire individuals 
            who have tested positive for marijuana use undermines their 
            ability to ensure the highest quality of care. ? The question 
            of whether an employee is 'impaired' is fact specific and the 
            law requires employers to have probable cause before seeking a 
            drug test."  Staff notes that although impairment is one 
            exemption to the protections provided to qualified patient 
            employees under this bill, persons involved in the delivery of 
            health care also may fall within the more general definition 
            of safety-sensitive positions excluded from the scope of SB 
            129.  

              d.   Exemption of safety-sensitive positions  
                
             Opponents raise concerns that the exemption to exclude medical 
            marijuana users from safety-sensitive positions is too narrow 
            and subjective, rendering the exemption useless to employers.  
            "Specifically, a position is considered 'safety-sensitive' and 
            exempt from the protections of SB 129, only if (1) it requires 
            a 'level of trust and responsibility' higher than normal; (2) 
            a 'clear' risk of health and safety to others is created if 
            there are errors in judgment, inattentiveness, diminished 
            coordination, or composure; and  (3) the employee works 
            independently or performs work where mistakes cannot likely be 
            prevented by a supervisor or other employeeÝs]. "As such, the 
            opponents believe the safety-sensitive exemption would lead to 
            differing opinions between employees and employers as to which 
            positions would fall under the safety-sensitive exemption.  In 
            response, the author argues that rather than provide a 
            detailed list of professions that would qualify as 
            safety-sensitive positions and inadvertently omit critical 
            positions that should be exempt from the provisions of SB 129, 
            the bill provides a list of considerations to be used in order 
            to determine the safety-sensitive nature of the position.

          7.  Governor's veto of AB 2279  

          This bill is substantially similar to the enrolled version of AB 
          2279 (Leno, 2008).  In vetoing AB 2279, the governor stated:

            This bill attempts to shield qualified medical marijuana 
                                                                      



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            patients employed in non safety-sensitive positions from 
            employment discrimination.  However, I am concerned with 
            interference in employment decisions as they relate to 
            marijuana use.  Employment protection was not a goal of the 
            initiative as passed by voters in
            1996.


           Support  :  American Academy of Cannabinoid Medicine; California 
          Communities United Institute; California Public Defenders 
          Association; Crusaders for Patients Rights; Drug Policy 
          Alliance; Law Enforcement Against Prohibition; Lawmen Protecting 
          Patients; National Lawyers Guild; National Organization for the 
          Reform of Marijuana Laws; San Francisco AIDS Foundation

           Opposition  :  Agricultural Council of California; Apartment 
          Association, California Southern Cities; Associated General 
          Contractors; CalChamber; California Association of Bed & 
          Breakfast Inns; California Association of Health Facilities; 
          California Association of Joint Powers Authority; California 
          Attraction and Parks Association; California Chapter of the 
          American Fence Association; California Farm Bureau Federation; 
          California Fence Contractors' Association; California Grocers 
          Association; California Hospital Association; California Hotel & 
          Lodging Association; California Independent Grocers Association; 
          California Narcotic Officers' Association; California New Car 
          Dealers Association; California Police Chiefs Association; 
          California Retailers Association; Engineering Contractors' 
          Association; Flasher Barricade Association; Marin Builders' 
          Association; Orange County Apartment Association; Western 
          Electrical Contractors Association

                                        HISTORY
           
           Source  :  Americans for Safe Access

           Related Pending Legislation  :  None Known

           Prior Legislation :  See Background.


                                   **************
          



                                                                      



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