This post was authored by Megan Lewis.

Since recreational marijuana was legalized in 2016, many have assumed that employment protections for marijuana users would likely expand, either via legislation or though litigation.

We are already seeing small steps in that direction. For instance, San Francisco recently amended its ban-the-box ordinance to, among other things, prohibit employers from taking action against applicants or employees for marijuana offenses related to conduct that has since been legalized in California (such as certain offenses for non-commercial use and cultivation of marijuana).

A recent bill, known as AB 2096, would go much further and protect current medical marijuana users from discrimination in employment.

Currently, 11 states (Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island) provide some level of employment protection to individuals who use medical marijuana, though the level of that protection varies from state to state.

California, which was the first state to legalize medical marijuana, has no such protections. But that would change if AB 2096 becomes law. In its current form, the proposed bill would amend the Fair Employment and Housing Act (“FEHA”) to require employers to engage in the interactive process, and reasonably accommodate, the use of medical marijuana when the use is by a qualified patient or person with an identification card (as defined in the Health and Safety Code) and the use is to treat a known physical or mental disability or known medical condition.

The FEHA would be amended to state that the Legislature intends to “make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person” based on his or her status as a medical marijuana patient or “the use of cannabis by those persons for medical purposes.” However, the bill does not go so far as to make use of medical marijuana a protected classification under the FEHA (i.e., like sex, race, religion, age, etc.). A previous version of the bill added “status as, or positive drug test for cannabis by, a qualified patient or person with an identification card, as those terms are defined in Section 11362.7 of the Health and Safety Code” to the list of protected characteristics of applicants and employees under the FEHA, but that language has been stricken from the current draft of the bill.

The bill includes two critical limitations on these new protections.

First and foremost, AB 2096 explicitly states that employers can still discipline or terminate an employee who “is impaired” at work or during work hours because of the medical use of cannabis. However, as a practical matter, it may be difficult for employers to prove whether an employee was under the influence of marijuana at work because the tests that are currently available are not sensitive enough to determine when the marijuana was consumed and/or whether someone is currently under the influence.

The bill also acknowledges that marijuana, including medical marijuana, is still illegal under federal law. Employers can refuse to hire or terminate a medical marijuana user if hiring or continuing to employ that person would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

If AB 2096 passes, it will be the first time employers have been required to alter their policies and procedures to conform to the changing landscape in California regarding marijuana use. LCW will continue to monitor the bill’s progress through the Legislature and report back regarding future developments.