BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2279|
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THIRD READING
Bill No: AB 2279
Author: Leno (D),et al
Amended: 7/2/08 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 6/24/08
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
ASSEMBLY FLOOR : 41-35, 5/28/08 - See last page for vote
SUBJECT : Medical marijuana: qualified patients and
primary caregivers
SOURCE : American for Safe Access
DIGEST : The bill prohibits employment discrimination on
the basis of a person's status as a qualified patient
(medical marijuana user), or on the basis of the person's
positive drug test for marijuana, provided the person is a
qualified patient and the medical use of marijuana does not
occur at the place of employment or during hours of
employment. An exception to the prohibition is when an
employer hires a person in a safety-sensitive position, as
specified. This bill creates, for a person who has
suffered discrimination as described above, a civil action
for damages, injunctive relief, and any other appropriate
equitable relief to protect the peaceable exercise of the
right or rights secured. The bill contains an exception
clause that states nothing in the section shall prohibit
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the employer from terminating the employment, or taking
other corrective action against a person who is impaired on
the property or premises of the place of employment or
during hours of employment because of the medical use of
marijuana.
ANALYSIS :
Existing law, Proposition 215 of 1996, the Compassionate
Use Act, confers on a person the right to obtain and use
marijuana for medical purposes where medical use is deemed
appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the
use of marijuana in treatment of cancer, anorexia, AIDS,
chronic pain, spasticity, glaucoma, arthritis, migraine, or
any other illness for which marijuana provides relief.
Existing law removes the criminal penalties for cultivation
and possession of marijuana by qualified patients, who are
persons with a physician's written or oral recommendation
or approval to use marijuana for medical use, or by their
primary caregivers, and protects physicians from punishment
for recommending marijuana to a patient for medical
purposes. (Section 11362.5(b), (c) and (d).)
Existing law provides that employment having no specified
term may be terminated at the will of either party on
notice to the other. (Labor Code Section 2922.)
Existing law provides that it shall be an unlawful
employment practice to discriminate based on race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, sex, age, or sexual orientation. (Fair Employment
and Housing Act (FEHA), Government Code Section 12940 et
seq.) The FEHA requires employers in their hiring
decisions to take into account the feasibility of making
reasonable accommodations to a person with a disability or
medical condition. (Government Code Section 12940(a)(2).)
This bill makes it unlawful for an employer to discriminate
against a person in hiring, termination, or any term of
employment or otherwise penalize a person, based on (1) the
person's status as a qualified patient, or (2) the
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qualified patient's positive drug test where the medical
use of marijuana does not occur on the property or premises
of the employer or during the hours of employment.
This bill establishes a civil cause of action by a
qualified patient or primary caregiver who suffered
discrimination for damages and injunctive relief,
reasonable attorney's fees and costs and any other
equitable relief to protect the peaceable exercise of the
right or rights and any other relief the court may deem
proper.
This bill does not apply when the employer employs a person
in a safety-sensitive position, as defined.
Finally, this bill expressly provides that the bill does
not prohibit an employer from terminating the employment of
or taking corrective action against an employee who is
impaired on the workplace premises or who is impaired
during working hours.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/5/08)
Americans for Safe Access (sponsor)
AFSCME
AIDS Healthcare Foundation
AIDS Institute
AIDS Project Los Angeles
American Civil Liberties Union
Berkeley Chamber of Commerce
California Labor Federation
Drug Policy Alliance
HIVictorious, Inc.
Lambda Letters Project
National Association of People with AIDS
National Lawyers Guild
National Organization for the Reform of Marijuana Laws
Protection & Advocacy, Inc.
San Francisco AIDS Foundation
Service Employees International Union
West Hollywood Chamber of Commerce
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OPPOSITION : (Verified 8/5/08)
ALPHA Fund
California Association of Health Facilities
California Association of Joint Powers Authorities
California Chamber of Commerce
California Employment Law Council
California Hospital Association
California Manufacturers & Technology Assn
California Narcotic Officers' Association
California Peace Officers' Association
California Police Chiefs Association
City of Modesto
CSAC Excess Insurance Authority
National Federation of Independent Business
Southwest California Legislative Council
State Department of Fair Employment and Housing
Western Electric Contractors Association
ARGUMENTS IN SUPPORT : On January 24, 2008 the California
Supreme court ruled in Ross v. Ragingwire
Telecommunications that an employee using medical marijuana
with a doctor's recommendation as permitted by California
law may be fired solely because of their status as a
medical cannabis patient. This bill makes it unlawful to
discriminate in employment practices based on an employee's
legal use of medical marijuana outside the work place and
not during work hours.
In its ruling the California Supreme Court ignored the will
of the voters and the legislature by invalidating the
rights of over 250,000 patients to be free from
discrimination in employment. Most concerning was the fact
that Gary Ross was not employed in a safety-sensitive
position, did not use medical marijuana at the workplace,
and was not under the influence of marijuana at work. In
essence, the Court said that Ross could be fired simply
because of his status as a patient using doctor recommended
medication.
In denying Ross certain protections from employment
discrimination, the High Court did invite the Legislature
to clarify its intent with respect to the employment rights
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of medical cannabis patients.
This bill provides 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.
This bill clearly establishes that medical marijuana
patients have a right to work. This bill does not require
an employer to accommodate marijuana impairment or use in
the workplace, and does not require the employer to violate
any state or federal law. ?
The policy of this state should be to encourage gainful
employment by those patients who are able to work. In
addition to being an issue for basic human fairness,
medical marijuana patients who lose their jobs could become
an additional burden for state general assistance, MediCal,
and other social services programs that are already
stressed by chronic funding shortages. This bill is a
reasonable solution that protects patients, employers, and
public safety.
Proponents contend that it doesn't make sense to allow a
person to use medical marijuana to control pain, for
example, and be immune from criminal liability, just to be
deprived of the opportunity to work and be self-supporting
because the Compassionate Use Act did not mention
employment law in the findings and declarations that
precede the Act's operative provisions. And since it was
the Supreme Court's view that the follow up legislation, SB
420, did not clearly state legislative intent to protect
the employment rights of medical marijuana users, This bill
is the author's and proponents' response to the call for
clarity.
ARGUMENTS IN OPPOSITION : Opposition to this bill comes
from different viewpoints. The National Federation of
Independent Business California (NFIB), for example,
contends that this bill "puts an employer in an untenable
position with regard to state-mandated workplace safety
laws. This bill does not allow employers to carry out
their duty to: (1) "furnish employment and a place of
employment that is safe and healthful for the employees
therein." Labor Code sec. 6400(a), (2) "adopt and use
methods and processes reasonably adequate to render the
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employment and place of employment safe" Labor Code Sec.
6403(b), (3) to do every other thing reasonably necessary
to protect life, safety, and health of employees" Labor
Code Sec. 6403(c)."
Further, the NFIB states that while they understand that
this bill does allow employers to exercise their right to
take corrective action against impaired employees, "this
bill cannot account for the possibility that accidents and
death may occur prior to any realization that an employee's
use of medicinal marijuana has caused impairment. This
places employers in danger of costly workplace safety
citations and higher workers' compensation premiums due to
this bill."(Letter dated June 10, 2008.)
Another view is expressed by the Association of California
Health Care Districts (ACHD): "[w]hile ACHD is sympathetic
to the needs of patients who use medical marijuana, our
primary concern is for the safety of patients who rightly
expect that their care givers will have met certain
employment criteria, one of which is being drug free.
Although AB 2279 excludes individuals employed in a 'safety
sensitive position,' that term is not sufficiently defined.
Many positions in a hospital are clearly
'safety-sensitive'; however, the definition could be
construed to exclude them." (Letter dated June 10, 2008.)
ASSEMBLY FLOOR :
AYES: Beall, Berg, Brownley, Caballero, Charles Calderon,
Coto, Davis, De La Torre, De Leon, DeSaulnier, Dymally,
Eng, Evans, Feuer, Fuentes, Furutani, Hancock, Hayashi,
Hernandez, Huffman, Jones, Karnette, Krekorian, Laird,
Leno, Levine, Lieber, Lieu, Ma, Mendoza, Mullin, Nunez,
Parra, Price, Ruskin, Salas, Saldana, Solorio, Swanson,
Torrico, Bass
NOES: Adams, Aghazarian, Anderson, Arambula, Benoit,
Berryhill, Blakeslee, Cook, DeVore, Duvall, Emmerson,
Fuller, Gaines, Galgiani, Garcia, Garrick, Horton,
Houston, Huff, Jeffries, Keene, La Malfa, Maze,
Nakanishi, Niello, Plescia, Sharon Runner, Silva, Smyth,
Spitzer, Strickland, Tran, Villines, Walters, Wolk
NO VOTE RECORDED: Carter, Nava, Portantino, Soto
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RJG:do 8/5/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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