AB 2279: Medical Cannabis Employment Non-Discrimination

Assemblymember Mark Leno (D-San Francisco) and several co-authors have introduced AB 2279, a bill that would protect the rights of hundreds of thousands of medical marijuana patients in California from employment discrimination. The bill, which was drafted with assistance from Americans for Safe Access (ASA) Legislative Analyst Noah Mamber, leaves intact existing state law prohibiting medical marijuana consumption at the workplace and protects employers from liability by carving out an exception for safety-sensitive positions. The employment rights bill, which is being co-authored by Assemblymembers Patty Berg (D-Eureka), Loni Hancock (D-Berkeley) and Lori Saldaña (D-San Diego), is in response to a January decision by the California Supreme Court in Ross v. RagingWire.  ASA Chief Counsel Joe Elford argued the case before the court and ASA is an organizational sponsor of the bill.

After passing both the Assembly Judiciary and Labor Committees, AB 2279 was passed by the full California Assembly on May 28, 2008. The State Senate Judiciary Committee than passed the bill on June 24. It was passed by the full State Senate on August 20.

AB 2279 Resources:

• AB 2279 bill text
• AB 2279 fact sheet

AB 2279 Organizational Support Letters:

• Service Employees International Union (SEIU)
• American Federation of State, County and Municipal Employees (AFSCME)
• California Labor Federation
• National Lawyers Guild
• National Association of People with AIDS
• San Francisco AIDS Foundation
• West Hollywood Chamber of Commerce

AB 2279 Talking Points:

• AB 2279 will prevent employers from discriminating against a legal medical marijuana patient and enables victims of employment discrimination to file a civil action in state court;
• AB 2279 preserves the right of employers to take action against employees that come to work impaired or consume medical marijuana at the workplace, and does not require the employer to violate any state or federal laws;
• AB 2279 will provide the clarification requested by the Court and reverse a decision that puts every medical cannabis patient in jeopardy of losing their job without due cause;
• In its ruling, the California Supreme Court ignored the will of the voters and the legislature by invalidating the rights of more than 200,000 patients to be free from discrimination in employment;
• The bill includes an exception for safety sensitive positions in which medical cannabis-affected performance could endanger the health and safety of others.

AMENDED IN SENATE JULY 2, 2008 AMENDED IN ASSEMBLY APRIL 21, 2008 AMENDED IN ASSEMBLY APRIL 14, 2008 AMENDED IN ASSEMBLY APRIL 2, 2008
california legislature—2007–08 regular session

ASSEMBLY BILL No. 2279
Introduced by Assembly Member Leno (Coauthors: Assembly Members Berg, Hancock, and Saldana)
February 21, 2008
An act to amend Section 11362.785 of, and to add Section 11362.787 to, the Health and Safety Code, relating to medical marijuana.
legislative counsel’s digest
AB 2279, as amended, Leno. Medical marijuana: qualified patients and primary caregivers: employment discrimination.
Existing 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.
Existing law requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to patients qualified to use marijuana for their personal medical purposes, and to their primary caregivers, if any. Existing law states, however, that these provisions do 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.

This bill, notwithstanding existing law, would 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 primary caregiver, or a positive drug test for marijuana, except as specified. The bill would authorize a person who has suffered discrimination in violation of the bill to institute and prosecute a civil action for damages, injunctive relief, and reasonable attorney’s fees and costs, any other appropriate equitable relief, as specified, and any other relief the court may deem proper. The bill would provide that it would not prohibit an employer from terminating the employment of, or taking other corrective action against, a person 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.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows: person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.

(d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.
SEC. 2. Section 11362.787 is added to the Health and Safety Code, to read:
11362.787. (a) Notwithstanding subdivision (a) of Section 11362.785, and except as provided in subdivision (c), it is 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 either of the following:

(1) The person’s status as a qualified patient or a designated primary caregiver.

(2) The person’s positive drug test for marijuana, provided the person is a qualified patient and the medical use of marijuana, as defined in Section 11362.7, does not occur on the property or premises of the place of employment or during the hours of employment, as required by Section 11362.785.

(b) A person who has suffered discrimination in violation of subdivision (a) may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, injunctive relief, and reasonable attorney’s fees and costs, any other appropriate equitable relief to protect the peaceable exercise of the right or rights secured, and any other relief the court may deem proper.

(c) (1) Paragraph (2) of subdivision (a) shall not apply when an employer employs a person in a safety-sensitive position.

(2) For purposes of this section, a safety-sensitive position means a position in which medical cannabis-affected performance could clearly endanger the health and safety of others. A safety-sensitive position shall have all of the following general characteristics:

(A) Its duties involve a greater than normal level of trust, responsibility for, or impact on the health and safety of others.

(B) Errors in judgment, inattentiveness, or diminished coordination, dexterity, or composure while performing its duties

AB2279 —4—

Some other cool websites: HR 5843 - Marijuana Videos - Hemp - Headshop - Marijuana Coalition - Marijuana - Marijuana Tattoos - Tokespace - Marijuana Seeds - AB 2279 - Medical Marijuana Guidelines