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Workplace discrimination against California medical cannabis patients may end

Qualified medical cannabis patients may gain the right to work in California. | GreenState file photo

Qualified medical cannabis patients face workplace discrimination in California. | GreenState file photo

Cannabis might be legal for all adults 21 and older to use in California, but you can still lose your job for off-duty marijuana use — even if a doctor recommends it.

That could change under a new bill from a California assemblyman hoping to enact the Golden State’s first anti-discrimination statute for medical cannabis patients.

Assemblyman Rob Bonta (D-Oakland) and co-author Assemblyman Bill Quirk (D-Hayward) have introduced Assembly Bill 2069 to “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.”

Cannabis remains a federally illegal drug deemed as dangerous and medically useless as heroin, and many employers have to follow federal drug laws. So Bonta’s bill would still allow employers beholden to federal funding or licensing to reject medical cannabis patients and comply with federal law. Employees who show up “impaired” could still be fired as well.

In the bill’s legislative counsel digest, the state of California notes that “many workers and their physicians find medical cannabis beneficial for relieving painful or disabling conditions that could otherwise impede their performance.”

Assemblyman Rob Bonta, D-Oakland, discusses his proposed measure to make it easier for people with marijuana convictions to erase or reduce their records, during a news conference, Tuesday, Jan. 9, 2018, in Sacramento, Calif. Bonta's bill would require county courts to automatically expunge or reduce eligible records, rather than requiring people to initiate the process themselves. (AP Photo/Rich Pedroncelli)

Assemblyman Rob Bonta, D-Oakland (AP Photo/Rich Pedroncelli)

A 2014 survey in the journal Drug and Alcohol Review found one in 20 California adults had used medical cannabis for a “severe” condition and 90 percent of them found it effective.

The digest states: “many employers nonetheless prohibit workers from using medical cannabis but allow them to use other, more dangerous and addictive drugs such as opiates when prescribed by their physicians.”

More Americans died last year from opioid drug overdoses — 64,070 people — than all the Americans killed in the Vietnam War, according to the CDC.

Bonta’s idea fits into a trend, too.

Eleven states — Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island — already have laws protecting medical cannabis patients against employment discrimination. The digest also finds that, “No scientific evidence exists that medical cannabis users are substandard employees” and that “workplace drug tests have never been demonstrated safe or effective by the United States Food and Drug Administration in improving workplace safety.”

A worker hungover on alcohol on a Monday could “pass” a standard drug test. Conversely, you can be fired for a joint you smoked six weeks ago, because “current workplace drug testing technology discriminates against medical cannabis use that has occurred days or weeks previously,” the digest states.

(Smoked cannabis’ effects wear off after about 90 minutes, while eaten cannabis effects can last six to eight hours. However, byproducts of cannabis use — called “metabolites” — stay in fat cells up to six weeks and can be detected through routine urinalysis.)

AB 2069 would expand California’s existing anti-discrimination code, which already bans discrimination by “race, religious creed, color, national origin, ancestry, physical disability, mental disability, [and] medical condition”.

California has had medical cannabis laws since 1996, and the issue of workplace discrimination of cannabis patients had previously been settled by the California Supreme Court, who ruled in 2008 in a precedent-setting case — Ross vs Raging Wire — that medical cannabis patients could be subject to workplace discrimination.

The state supreme court of Colorado, in the case of — Coats vs Dish Network  — came to a similar conclusion in 2015.

But as medical marijuana has expanded to cover more than 29 states, new medical marijuana laws ban such discrimination.

American support for access to medical marijuana polls at 90 percent, Quinnipiac finds, and the federal government is currently barred from spending any money interfering with state-legal medical pot programs. The trend is toward more and more workplace rights for cannabis users, including allowing workman’s compensation insurance claims to cover cannabis.

A National Law Review study from November 2017 concluded that “federal laws are not intended to preempt or supersede state anti-discrimination laws” and that employers face an “increased risk of enforcing zero tolerance drug testing policies against certified medical marijuana users.”  

A recent poll found commissioned by a marijuana breathalyzer company in Berkeley found that about half of companies in medical marijuana states have some accomodation for medical marijuana patients. However, 56 percent of business also planned to discriminate against workers for otherwise responsible, off-duty use.

This February, Maine reportedly banned employers from firing workers for off-duty use.

A survey by the advocacy group California NORML found that one in ten respondents have lost a job because they tested positive for cannabis. Nearly one in five have been denied employment due to medical cannabis use, and almost half of respondents feared losing job opportunities because of cannabis discrimination.