States that have legalized medical or recreational marijuana use continue to struggle with reconciling those laws with employers’ ability to regulate employees’ marijuana use. Recently, the California legislature failed to pass a bill that would have added medical marijuana use as a protected classification under that state’s employment discrimination law.
The proposal would have added medical marijuana users to a list of protected categories that includes age, race, sex, sexual orientation, and other characteristics. Employers found to have discriminated against medical marijuana users would have faced administrative claims and possible lawsuits based on such adverse employment actions. To date, California courts have declined to recognize any obligation on the part of employers to accommodate marijuana use, although the state restricts employee drug testing for other than safety-sensitive positions. The few states that have adopted employment protections for marijuana users have not used civil rights-type employment discrimination laws to accomplish this goal.
While the bill stalled in committee this term, it remains under consideration. California legislators expressed concerns over the legislation’s effects, including balancing employees’ right to use marijuana for medical purposes against employers’ safety and productivity concerns. Once these issues are resolved in future years, employers with California operations can expect legislation that may require modification of their drug use policies.