Although California was one of the first states to legalize medical cannabis, and later recreational cannabis, voters and the courts have long resisted extending protections against discrimination in employment to cannabis users. In 1996, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, legalizing the use of cannabis for medical purposes, such as the treatment of anorexia, arthritis, chronic pain, and migraines. That law did not explicitly address the treatment of medical cannabis in the workplace.
In 2008, in Ross v. RagingWire Telecommunications, Inc., the Supreme Court of California held that employers were not required to accommodate medical cannabis use under the Fair Employment and Housing Act (FEHA). That decision remains the law today. Although in 2016, California voters passed Proposition 64, the Adult Use of Marijuana Act, which legalized the recreational use of cannabis by adults 21 years of age and older, that law expressly exempted employers from having to permit or accommodate employee use of cannabis.
Recently, there has been a trend by state legislatures to recognize cannabis users as a new protected class, with California being the latest state to consider the idea. On February 18, 2020, California State Assembly Member Rob Bonta introduced Assembly Bill (AB) 2355, proposing to amend the FEHA to prohibit discrimination against employees based on their use of medical cannabis. The bill would have required employers to accommodate employees currently using medical cannabis, just as employers must accommodate employees with legally prescribed medications that cause similar impairments. Although the bill is not moving forward this year, it portends what California employers should expect as early as next year.
The bill set forth the following legislative findings:
“Sixteen states, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island,