Conflict Resolution

New Employee Benefits: Weed and Paid Leave?

Elizabeth A Moreno asked:

a is seeking to be the first State in the nation to mandate that employee’s get paid sick leave and continue to work while using Marijuana for medicinal purposes. At the California State Bar Conference of Delegates in September, California attorneys are seeking changes for weed and paid leaves.

The Medical Marijuana resolution would preclude a blanket employment prohibition for qualified medical marijuana patients, while allowing employers the right to restrict such patients from working in positions that directly affect other peoples’ health and safety, and maintain employers’ right to prohibit medical marijuana use in the workplace. This resolution seeks to overturn the recent California Supreme Court case of Ross v. Raging Wire Telecommunications Inc. (January 24, 2008) which allows an employer to deny employment to a qualified medical marijuana patient. This resolution basically mirrors the current resolution before the California Legislature, Assembly Bill 2279 which is aimed at protecting the employment of medical marijuana users in California. The bill leaves intact existing state law prohibiting medical marijuana consumption at the workplace or during working hours and protects employers from liability by carving out an exception for safety-sensitive positions. AB2279 is not about being under the influence while at work but allows an employee to work safely and who uses their doctor-recommended medication in the privacy of their own home, to not be arbitrarily fired from their jobs.

However, opponents argue that the most important, and irreconcilable, problem with this resolution is that marijuana use remains illegal under federal law, even for medical users, as the California Supreme Court recognized in the Ross v.RagingWire Telecommunications decision. Thus, California cannot, and should not, require employers to accommodate the use of illegal drugs by its employees. This is a major problem and even though some attorneys want the law changed and the California Supreme Court opinion reversed, the federal law will still get employees and employers into trouble.

The second resolution advocates that employers give mandatory paid sick leave to employees. This resolution would guarantee paid leave for employees who take time off due to their own illness or injury or to provide care to a sick or injured member of the employee’s immediate family. The California Legislature is currently addressing this issue. However, unlike the California State Bar Conference of Delegate Resolution, the proposed legislation caps annual paid sick time for medium-to-large employers to nine days and five days for smaller employers. Assembly Bill 2716, which is entitled the Healthy Families, Healthy Workplaces Act, cleared the Assembly and has been referred to the State Senate. Even if the Senate approves this bill, it is expected to be vetoed by the Governor. However, the issue may be resurrected again next year by the Legislature, if the resolution is approved this year at the September Conference of Delegates.

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