Medical Cannabis Users May Soon be Protected Under FEHA – AB2069

Assembly Bill (“AB”) 2069 was introduced by the California Assembly on February 7, 2018. Currently, California employers can deny employment or impose discipline on cannabis users, regardless of whether such use is for medical purposes. AB 2069 would amend the Fair Employment and Housing Act (“FEHA”) to make it an unlawful practice for an employer to take adverse action against an applicant or employee because of a positive drug test for cannabis (by a medical cannabis card holder) or because of one’s status as a medical cannabis card holder.

Employers would be permitted to take corrective action against employees who are impaired on employer premises because of medical cannabis use. Cannabis can be detected days or even weeks following consumption depending on the duration and frequency of use. As such, there is no empirical way to pinpoint how recently the employee used the drug. Thus, in order to take corrective action against an employee using medical cannabis, the employer would have to have a clear indication that the employee was in fact impaired on the employer premises at a specific point in time. Employers would also be permitted to deny employment to a medical cannabis card holder “if hiring the individual or failing to discharge the employee would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.” AB 2069 would not protect recreational cannabis users. Therefore, employers could still take corrective action against employees who test positive for cannabis use that do not hold a medical cannabis card.

AB 2069 is currently pending in the California State Legislature. If the bill is successful, it will affect California employer’s drug testing policies and policies for how California employers treat applicants and employees who test positive for cannabis use. California employers should keep an eye out as this bill progresses through the legislature and be ready to consult legal counsel to revise policies regarding medical cannabis use should the bill get signed into law. If you would like to track the bill click here.