A new year with the California legislature has just begun. Is the budget on the top of legislator’s mind? Is their first priority creating an environment conducive to putting out of work Californian’s back to work? Unfortunately, the answer to both these questions is a resounding NO. Instead, legislators are focused on allowing people to come to work after smoking pot.
In a recent bill, SB 129, Californian’s who use medical marijuana outside of work would be protected from job dismissal. The bill, introduced by Sen. Mark Leno, D-San Francisco, would make it illegal for an employer to consider either a worker’s status as a registered patient or a positive drug test when making hiring and firing decisions. Workers such as health care providers, school bus drivers and operators of heavy equipment – so-called “safety-sensitive positions” – would not be protected by the law. However, the bill is silent regarding what an employer can do when an employee poses a safety risk to himself or others as a result of pre-workday pot use.
The same bill, authored by Leno, was previously passed by the legislature but vetoed by former Gov. Arnold Schwarzenegger. In his veto message, Schwarzenegger wrote he was “concerned with the interference in employment decisions as they relate to marijuana use” and that employment protection was not a goal of Prop 215, which voters passed in 1996 to allow medical marijuana.
Leno said then that the notion that voters only intended for unemployed people to be able to take medical marijuana is “nonsensical on its face.” However, voters in November 2010 resoundingly voted down Prop 19. Prop 19 would have provided similar workplace rules for dealing with medical marijuana users.
The relentless push for statutory protections for employees who use medical marijuana is a result of a California Supreme Court decision in 2008 that allowed employers to fire workers who test positive for marijuana use, even if those workers are medical marijuana patients. In a 5-2 decision, the court found Prop 215 does not limit an employer’s authority to fire workers for violating federal drug laws.
This year, California employers do not have Arnold to backstop these types of anti-employer ideas. Hiding behind the mantel of campaign compassion, Leno says nothing about the co-employees that may be put at risk of serious injury as a result of drug use in the workplace. Employers will just have to strap in for the ride we are all about to take. We can only hope these types of “budget neutral” bills are seen for what they really are: an anti-employer impediment to putting Californians back to work.