California's AB 2069, a bill to require employers to accommodate medical cannabis users, recently failed to advance past committee.
We previously reported that the California legislature was considering AB 2069, the "Medical Cannabis Worker Protections Act," a bill to amend the Fair Employment and Housing Act to require most employers to engage in the interactive process with and consider reasonable accommodations for cannabis users.
Yet, on May 25, 2018, the bill failed to advance past the Appropriations Committee. Instead, the bill was "held under submission," which, according to the legislature's website, means "there is an indication that the author and the committee members want to work on or discuss the bill further, but there is no motion for the bill to progress out of committee." Whether the bill will be set for another hearing remains to be seen.
Marijuana remains a Schedule I drug under the federal Controlled Substances Act. As a result, and consistent with the California Supreme Court's decision in Ross v. RagingWire Telecomm., Inc., which upheld the right of an employer not to hire an applicant who tested positive for marijuana recommended by his physician, employers can continue to rely on federal law and enforce their workplace substance abuse policies. That said, given the growing popularity of medical and recreational marijuana laws, which are being enacted from coast-to-coast, and the willingness of courts to hold that employers may have a duty to reasonably accommodate medical marijuana use, we do not expect the saga in California to end here.
In the meantime, given the recent passage of California's recreational marijuana law, employers may want to consider reviewing and updating their substance abuse policies, including their drug-testing policies, to ensure they are clear as to their expectations of employee marijuana use. Employers also should continue to monitor developments in this evolving area of the law.
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