New Medical Marijuana Law SB 129 Protects Workers In California
SB-129 would make it illegal for an employer to fire an employee merely because they use medical cannabis on their own time. 
My law office gets calls—probably one a week—that go something like this: “My employer fired me because they found out I use medical marijuana even though I have a recommendation. Is there anything I can do? Can I sue?”
The answer, at least in California, at the moment is no. California State Senator Mark Leno is looking to change that. He has proposed legislation in Bill SB-129 that would actually make it illegal for an employer to fire an employee merely because they use medical cannabis on their own time. This legislation also has precise enforcement provisions where an employee or applicant may sue the employer for discriminating against him/her on the basis of medical marijuana use.
SB 129 would make it so that it would be illegal to turn away a potential employee or fire an existing employee based upon a positive drug test for marijuana while that person is a qualified medical marijuana patient. However, the bill would not change the existing laws that prohibit employees from using their medical marijuana at work. It is also limited in scope. The bill does not cover what it considers “safety-sensitive positions” such as bus drivers, or operators of heavy equipment.
Under SB 129, it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person, if the discrimination is based upon either, (1) the person's status as a qualified patient; (2) the person's positive drug test for marijuana, while the person is a qualified patient. However, an employer still has a right to fire a person for using medical marijuana on the property or premises of the place of employment or during the hours of employment.
One of the strongest provisions of SB 129 is that a qualified patient may receive reasonable attorney's fees if her or she prevails in their lawsuit against the employer. Often, the attorney’s fees provisions are a stronger deterrent to an opponent than the threat of the lawsuit itself, as fees are often far greater than the damages themselves.
However, a plaintiff must also be careful, as the attorney’s fee provision may apply to a losing plaintiff as well, a measure designed to reduce frivolous suits. A discriminated person must pay particular attention that he or she cannot be deemed to be “a person in a safety-sensitive position.” A safety-sensitive position means a position in which medical cannabis-affected performance could clearly endanger the health and safety of others. The criteria for a safety-sensitive position includes: (A) Its duties involve a greater than normal level of trust, responsibility for, or impact on the health and safety of others. (B) Errors in judgment, inattentiveness, or diminished coordination, dexterity, or composure while performing its duties could clearly result in mistakes that would endanger the health and safety of others. (C) An employee in a position of this nature works independently, or performs tasks of a nature that it cannot safely be assumed that mistakes like those described in subparagraph (B) could be prevented by a supervisor or another employee.
If there is any wiggle room, or question as to whether a person being discriminated against is in a safety-sensitive position, that person must seek an attorney to ensure that he/she will not be at risk of losing his/her lawsuit against an employer for discrimination, and thus at risk of being liable for attorney’s fees.
This bill is a clear step towards ending the discrimination against Medical Marijuana patents, a positive move in removing the stigma towards this vital healthcare issue.
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Wednesday, 13 April 2011
