California's workplace protections for marijuana users

REUTERS/David McNew

June 28, 2021 - A patchwork of state and local employment laws. That is what has developed over roughly the past decade-plus as regional legislators have taken the torch from federal lawmakers with respect to advancing workplace-related rules and regulations. This has manifested itself in numerous ways, from waves of paid sick leave laws to an inundation of restrictions on what can be asked during the hiring process (and when).

What does this mean for U.S. businesses, particularly those with operations across multiple states and localities? It means that legal compliance is not just ensuring adherence to federal law anymore; indeed, that is now the mere compliance floor. Rather, it means that businesses need to understand, assess, and develop a plan for compliance with the employment laws in all of the states, cities, and counties in which they operate. This is often further complicated by the fact that laws that purport to cover the same issue often have differing requirements across state lines (and sometimes, as is the case with New York State and City for instance, even within the same state).

Nowhere are the complexities created by this legal patchwork more prevalent than with respect to the intersection of marijuana use and federal, state, and local employment laws, particularly in California. By way of background, marijuana use has been prohibited at the federal level since as early as 1930, when the Federal Bureau of Narcotics pushed states to adopt the Uniform State Narcotic Drug Act. Since then, federal prohibitions on marijuana include legislative actions such as the 1937 Marijuana Tax Act, the 1952 Boggs Act, the 1956 Narcotics Control Act, and the Anti-Drug Abuse Act of 1986.

The current federal legislation controlling marijuana possession, use, and distribution is the Controlled Substances Act, which was published in 1971 and classifies marijuana as a Schedule I drug. This category is for drugs that, according to the Drug Enforcement Administration, have "no currently accepted medical use and a high potential for abuse" and create a risk of "severe psychological and/or physical dependence."

Despite the long history of marijuana prohibition at the federal level, over the last several decades, state legislatures have attempted to reverse the federal trend of marijuana prohibition. By the 1990s, various states began to legalize medical marijuana — but restricted access to individuals who satisfied certain criteria — including California, which in 1996 became the first state to permit medicinal marijuana use.

Then, in November 2012, Colorado and Washington went a step further by legalizing marijuana for recreational use under state law. Today, 17 states and the District of Columbia permit marijuana use for recreational purposes, while 36 states permit marijuana use for medicinal purposes.

Despite legalizing the use of medicinal marijuana in 1996, California employers have long been permitted to take employment action against employees for testing positive for marijuana, regardless of whether that employee legally utilized marijuana for medicinal purposes.

In its seminal 2008 ruling in Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court held that employers are not required to accommodate marijuana use, including as a medical treatment for a disability or injury, because it remains illegal under federal law and because the underlying legislation did not specifically compel employers to permit marijuana use in the workplace.

And in fact, even with the Golden State's legalization of recreational marijuana use in 2016, Ross is still the law of the land in California.

In the last few years, however, California lawmakers have attempted, on several separate occasions, to enact legislation that would prohibit adverse employment actions on the basis of marijuana use. In 2018, for instance, Representative Rob Bonta introduced Assembly Bill 2069, which sought to prohibit employers from terminating, disciplining, or refusing to hire persons who use marijuana and possess a valid state identification card as a medical marijuana patient.

That bill failed to proceed from the Assembly Appropriations Committee. Similarly, in 2019, Representative Kevin McCarty introduced Assembly Bill 882, which would have prohibited an employer from terminating an employee based on a positive drug test if the drug was being used as part of a narcotics or medication-assisted treatment program. The bill was later amended to remove any substantive protections for marijuana use by California employees.

On Feb. 19, 2021, California legislators once again introduced legislation to institute employment protections to individuals utilizing marijuana. Specifically, Assembly Bill 1256 (AB 1256) would, if passed, prohibit employers from discriminating against a person in hiring, termination, or any condition of employment due to the fact that a drug test has found that person to have marijuana in their urine.

AB 1256, which would add Section 52.8 to the California Civil Code, specifies that a person who suffers discrimination in violation of this law may institute and prosecute a civil action for damages, injunctive relief, attorney fees and costs.

Notably, however, the bill does not prohibit an employer from conducting a drug screening test for tetrahydrocannabinol (THC) — the principal psychoactive constituent of marijuana — in any of the following instances:

(1) the employer is required to conduct that test by federal law or regulations;

(2) the employer would lose a monetary or licensing-related benefit for failing to do so; or

(3) the employment is in the building and construction trades.

At present, it appears as if AB 1256, like its predecessors, will not be adopted. Recently, legislators amended AB 1256 to remove all proposed employment protections for a positive test of tetrahydrocannabinol, the chemical compound in cannabis that can indicate impairment and causes psychoactive effects. Instead, under the current version of AB 1256, the bill only prohibits an employer from discriminating against a person on the basis of a positive drug screening test for non-psychoactive cannabis metabolites.

Despite the quagmire in the Golden State, there remains the possibility that the federal government will resolve the conflict between federal and state law with respect to the classification of marijuana. Unless and until that happens, however, the business community should expect local lawmakers to continue taking a proactive role in providing marijuana-related protections to employees, which will in turn continue to cause tension between the federal framework, and the framework of what is now a majority of the states, as it relates to workplace-related marijuana issues.

California employers in particular should continue to monitor state and local developments as lawmakers continue to seek greater employee protections for marijuana use.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Mark Goldstein is a partner in the Labor & Employment practice at Reed Smith in New York. His practice is focused on helping companies manage their workplace needs, and he counsels clients on day-to-day and big-picture workplace issues. He can be reached at MGoldstein@reedsmith.com.

Kourosh Jahansouz is an associate in the Labor & Employment practice of Reed Smith in San Francisco. His practice focuses on defending employers against claims relating to harassment and discrimination, wrongful termination and wage and hour. He can be reached at KJahansouz@reedsmith.com