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May 20, 2011
Honorable Mark Leno
California State Senate
Capitol Building, Room 5100
Sacramento, CA 95814
Dear Senator Leno:
Disability Rights California, a non-profit advocacy organization mandated to advance the human and legal rights of people with disabilities, supports SB 129. This bill is currently on the Senate Floor.
The Compassionate Use Act of 1996 provides that a patient or a patient's primary caregiver who possesses or cultivates marijuana for the 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. Current 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 prohibits the use of medical marijuana by qualified patients on the property or premises of any place of employment or during the hours of employment.
SB 129 establishes that an employer may not discriminate against an employee in hiring, termination, or any term or condition of employment, if the discrimination is based on the employee’s status as a qualified medical cannabis patient who uses the doctor recommended cannabis medication outside of work and not during working hours in compliance with existing law.
SB 129 includes an exception for safety-sensitive positions, as defined in federal and state law, in which medical cannabis-affected performance could endanger the health and safety of others. Positions such as health care providers, school bus drivers, operators of heavy equipment, etc. are exempted to protect employers from liability and to ensure public safety.
The bill reaffirms current law and does not prohibit an employer from terminating the employment of, or taking other corrective action against, a person 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.
This bill was introduced in response to the California Supreme Court’s decision in Ross v. Ragingwire, Cal. Sup. Ct. No. S138130 (January 24, 2008). The decision addressed whether employers can, under California employment law, fire (or decline to hire) employees who test positive for drug use only because they have ingested marijuana off the jobsite, in a way that doesn't prevent satisfaction of essential job functions, and pursuant to California’s Compassionate Use Act of 1996, passed by initiative over a decade ago.
By a 5-2 vote, the majority of California Justices said employers can fire workers who test positive for marijuana used under a physician’s recommendation, finding the state’s Compassionate Use Act does not extend to the workplace and the state’s Fair Employment and Housing Act does not protect workers using a drug still illegal under federal law.
The author of this bill and other lawmakers filed a 2006 amicus brief in the Ross case stating that the Legislature’s intent in enacting the Compassionate Use Act was to permit the use of medical cannabis outside the workplace and that the Fair Employment and Housing Act “generally requires accommodation of medical cannabis use by disabled persons with medical conditions.” The court, however, felt otherwise.
This bill seeks to prevent the kind of employment discrimination allowed by the Ross ruling, and will specifically protect medical cannabis patients’ right to employment. Disability Rights California staff recommends a support position on this bill. A person with a disability should not have to choose between their (legal) medical treatment and their ability to secure and keep employment. There are adequate protections in the bill which ensure that individuals who are impaired while at work because of their use of medical marijuana are protected from being disciplined.
For these reasons, we support this bill. Please contact me if you have any questions about our position on this bill.
Evelyn M. Abouhassan
Senior Legislative Advocate
Disability Rights California
CC: Honorable Members of the California State Senate
CC: Barry Steinhart, Senior Legislative Aide, Senator Leno’s Office