CHRONIC EMPLOYMENT

New Bill Would Prevent Employers From Discriminating Against
Medical-Pot Patients

When 45-year-old disabled Air Force veteran Gary Ross was fired from
his job after failing a drug test, he informed his employer that he
was legally permitted by his doctor to use medical marijuana.
Unfortunately, this did not save Ross' job. It did, however, spark
conversation about discrimination in the workplace, and whether there
should be a provision in the law to protect medical-marijuana
patients from termination based on their (legal) drug use.

Ross sued for unlawful discrimination, and the California Supreme
Court eventually determined that he, being a qualified patient, was
not protected in the workplace under any law. Neither the
Compassionate Use Act of 1996, which authorized the use of marijuana
for medical purposes, nor the Fair Employment and Housing Act, which
established protections for employees and employers, provide any clarification.

State Sen. Mark Leno, D-San Francisco, is proposing legislation that
would provide employment rights to the nearly 500,000 people in
California who legally use medical cannabis. Because these
Californians are not protected under current law, patients must often
find jobs that don't require drug testing.

Senate Bill 129 would change this, making it illegal for employers to
discriminate against an employee on the basis of a positive drug
test, provided that the employee is a qualified patient. Nearly
identical to Assembly Bill 2279 (which Sen. Leno proposed in 2008 and
which passed through both houses, only to be vetoed by Gov. Arnold
Schwarzenegger), S.B. 129 passed out of the Senate Judiciary
Committee last month and is set for a vote soon on the Senate floor.

S.B. 129 is sponsored by Americans for Safe Access, which hopes that
the bill will "finally win protection for responsible, law-abiding
patients in the workplace." ASA sees the bill as a sensible one,
which would encourage the employment of Californians and, in keeping
qualified patients employed, avoid further strain on state welfare programs.

While A.B. 2279 was supported by the Legislature when it was proposed
in 2008, many employment organizations have come forward in
opposition to S.B. 129. Many opponents worry that the bill would
allow employees to come to work impaired or use marijuana during work hours.

One key facet of the bill is the stipulation that the qualified
patient cannot be under the influence at work or during working
hours. Additionally, the protections provided under S.B. 129 would
not be extended to employees who work in what the bill calls a
"safety sensitive" position. This would include any position where
the employee could have the capacity to affect the health or safety
of others. The vagueness of this part of the bill has raised some
alarm among those who aren't convinced of the bill's viability.

Given the former success of A.B. 2279, it is likely that S.B. 129
will pass in the Legislature. But the road to becoming law is long,
and whether the bill receives the appropriate edits when it is
submitted for further committee review will determine its eventual success.