February 2, 2011

California Bill Seeks to Protect Medical Marijuana Users from Losing Jobs or Not Being Hired Because of a Negative Pot Drug Test

San Francisco Examiner - A recently introduced bill would protect California workers who use medical marijuana with the approval of a physician outside of the workplace from losing their jobs due solely to their drug usage, while also making it illegal for employers to consider medical marijuana patient status or positive marijuana drug tests when making hiring and firing decisions.

Senate Bill 129 (SB 129) – introduced by State Senator Mark Leno (D-San Francisco, Marin & Sonoma) – would amend, and add a section to, the Health and Safety Code relating to medical marijuana in order to “declare it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person, if the discrimination is based upon the person's status as a qualified patient or a positive drug test for marijuana, except as specified.”

In addition, SB 129 “would authorize a person who has suffered discrimination in violation of the bill to institute and prosecute a civil action for damages,” but the bill would also “not prohibit an employer from terminating the employment of, or taking other corrective action against, an employee who is impaired on the property or premises of the place of employment, or during the hours of employment, because of the medical use of marijuana.”

As stated in SB 129, existing California law, the Compassionate Use Act of 1996, “provides that a patient or a patient's primary caregiver who possesses or cultivates marijuana for personal medical purposes of the patient upon the written or oral recommendation or approval of a physician is not subject to conviction for offenses relating to possession and cultivation of marijuana.”

Leno authored a similar measure for medical marijuana patients in 2007 that was passed by the California Legislature but ultimately vetoed by former Governor Arnold Schwarzenegger due to concern with the “interference in employment decisions as they relate to marijuana use” and because "employment protection was not a goal" of the Compassionate Use Act of 1996.

A 2008 ruling by the California Supreme Court allowed employers to fire or refuse to hire workers, even medical marijuana patients, who test positive for marijuana use by upholding the firing of an employee at a Sacramento firm – a medical marijuana user for injures sustained while in the Air Force – after he failed an employment mandated drug test.

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