March 13, 2018 Category: Discrimination
In January, the Adult Use of Marijuana Act became law, making it legal for adults to consume, purchase, and grow limited amounts of marijuana for recreational use. Since medical marijuana was already legal in the state, this law essentially decriminalizes most marijuana-related activities in the state. However, even though marijuana use is legal at the state level, employers still have the right to take adverse employment action if an employee chooses to use the legal drug. This is true even if an applicant or employee uses the drug solely for medicinal uses. In fact, the Adult Use of Marijuana Act explicitly permits employers to “maintain a drug and alcohol-free workplace.”
If you use medical marijuana, the rules may soon change. Two California lawmakers have introduced legislation that would prohibit employers from taking adverse employment action against anyone who is a certified medical marijuana user. The new law would create a new protected category under California’s primary employment discrimination law, the Fair Employment and Housing Act (FEHA).
Proposed Protections for Medical Marijuana Users
Under the current law, employers are free to maintain a drug-free workplace. This means that they can refuse to hire applicants and take adverse employment action against employees who use marijuana. Many employers have drug use rules in place and perform random tests to ensure that their applicants and employees are following protocol. Many employees in California are becoming frustrated with these permissible restrictions on drug use. This is especially true for Californians who have a legitimate medical issue that is being treated with medicinal marijuana. Employees currently face a difficult situation: comply with drug-free workplace requirements and ditch helpful treatment, or continue to use the drug and hope their employer doesn’t find out.
Creating a New Protected Class
Under the newly proposed law, California’s Fair Employment and Housing Act would be amended to create an entirely new protected class: medical marijuana users. If the new class is put in place, employers will be prohibited from discriminating against any applicant or employee for using medical marijuana. This would only apply to individuals who hold a certified medical marijuana card and who use the drug solely for medicinal purposes.
Employment discrimination could include:
- Refusing to hire applicants
- Terminating or demoting employees
- Reducing work hours
- Changing job responsibilities without cause
- Excluding employees from employment-related activities
- Decreasing an employee’s rate of pay or salary, and
- Refusing to promote or give an employee a raise.
Limitations to New Protections
Many employers have strict “no drug use” policies because of legitimate safety issues. The new law would not strip an employer’s right to maintain a safe workplace. The new protections would simply prevent an employer from taking adverse employment actions because an employee uses medicinal marijuana on his or her own time. The new legal protection would not prevent employers from punishing an employee for consuming the drug at work or showing up while under the influence. Safety in the workplace will not be compromised because of the legal protection. Employees must consume their medicinal marijuana on their own private property and ensure that they can perform the essential functions of their job. Employers retain the power to penalize an employee for violating these terms.
Would Employment Protections Be Blocked by Federal Law?
Marijuana is still classified as a Schedule I Controlled Substance under Federal law. How will this affect any changes made to the California Federal Housing and Employment Act and the recognition of medical marijuana users as a protected class? The answer will likely come down to the courts. In Connecticut, a court found federal law did not preempt a similar state employment law. In New Mexico, however, a court decided that the federal law reigned supreme. Until marijuana becomes legal at the federal level, state protections for employees will be limited.
Fight Back Against Employment Discrimination
Have you been the victim of workplace discrimination? Contact the Briski Law Group today to request a free consultation. We will review your case, explain your rights, and outline the legal options that may be available to you.