It's High Time: What California's Marijuana "De-Criminilization" Means -- and What it Doesn't Mean

California has long been more progressive than the federal government on the issue of cannabis. Since 1996, medical use of cannabis has had no criminal penalty attached to it in California, by virtue of the Compassionate Use Act. Seehttps://ballotpedia.org/California_Proposition_215,_Medical_Marijuana_Initiative_(1996). The State removed all criminal penalties for adults, even for recreational use, in 2016. See www.courts.ca.gov/prop64.html.


Now, a new state law will protect California workers from being fired for using cannabis on their free time, away from the workplace. The new law will take effect on January 1, 2024. You can read the text of the law here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2188


So is marijuana legal in California now?


I. MARIJUANA IS STILL ILLEGAL IN CALIFORNIA, AND EVERY STATE OF THE UNION


It's unfortunate that the news media, well-meaning internet authorities, and even some attorneys say that marijuana is legal in California.


No, it's not. And you need to know why.


There are two main sources of law: federal and State law. It is fundamental to our form of government that federal law is always superior to State law. If State law contradicts federal law, the federal law wins. We fought a Civil War over this issue, and the federalists won.


Cannabis is a Schedule I Drug under the federal Controlled Substances Act. See 21 USC §811(a)(2). That means that it is illegal to possess in any amount, and is referred to as "contraband." This is why banks that are federally insured under the Federal Deposit Insurance Corporation ("FDIC") won't take money from marijuana businesses; banks that do are committing a federal crime.


California only did what it could do: It removed State criminal penalties from cannabis use. But it did not, and never could, make cannabis legal. It is still illegal under federal law.


But this is the website of an employment law attorney. So what does all this mean for your employment?


II. CALIFORNIA EMPLOYERS WON'T BE ABLE TO FIRE MOST WORKERS BECAUSE OF CANNABIS USE AWAY FROM THE WORKPLACE AND WHO AREN'T IMPAIRED AT WORK


When the law takes effect, California employers will be prohibited from firing workers because of that worker's use of cannabis away from the workplace. Even if a drug test shows cannabis use, firing the worker because of that will be illegal starting in 2024. The new law added to the Fair Employment & Housing Act, and so carries substantial remedies with it for aggrieved workers.


The law continues to allow employers to fire workers who are impaired at work, or who have cannabis with them at work. And if you're in a job that requires a federal background or security clearance, or if your employer has federal contracts that require drug screening, you are not protected by this law. Furthermore, certain professions are exempted from the law and can still be fired for cannabis use, such as building or construction.


If you're a federal employee working in California, the law doesn't apply to you at all.


III. HOW ABOUT DISABILITY ACCOMMODATIONS?


You may have heard about an employer's obligation to accommodate a disability under the federal Americans with Disabilities Act ("ADA"), or its less famous but much better California cousin, the Fair Employment & Housing Act ("FEHA"). Those laws require most employers to provide a reasonable accommodation for individuals with disabilities.


So how about medical marijuana use? Must an employer allow an employee who uses cannabis medicinally to use it at work? How about giving time off to use marijuana?


The answer is: almost certainly not. In evaluating the Compassionate Use Act in a FEHA context, the California Supreme Court laid down the law: ""No state law could completely legalize marijuana . . . because the drug remains illegal under federal law, even for medical users . . . . The FEHA does not require employers to accommodate the use of illegal drugs." Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920, 926 (2008).


I've researched this pretty extensively, and found only one case that held that medical marijuana use must be accommodated, and that was under State, not federal law, in Massachusetts. See Barbuto v. Advantage Sales & Marketing LLC, 47 Mass. 456 (2017).

IV. TALK TO YOUR ATTORNEY


As you can see, the issue isn't as straightforward as it might have appeared at first. Before you make decisions that could affect your employment, it's always a good idea to talk to an attorney who is experienced with the issues. The Law Office of Craig T. Byrnes is here to protect employees' rights, in this and other areas of employment.






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