Specifically, the most recent version of the bill provides that unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under a contract or federal law, it would be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, other than contained in a collective bargaining agreement, if the discrimination is based upon either:
- the person’s status as a cardholder; or
- a registered qualifying patient’s positive drug test for cannabis components or metabolites, unless the registered qualifying patient was impaired by cannabis during the hours of employment or in a “potentially dangerous occupation.”
If enacted, the law would allow an employer to use a fit for duty test as a risk-based assessment tool for a registered qualifying patient, but only in “potentially dangerous occupations,” a term the bill does not define.
The current version of the bill contains numerous carve-outs, stating that it will not apply to:
- Law enforcement officers in the state or counties or employees of a state correctional facility;
- Firefighters employed by the state or counties;
- Water safety officers, lifeguards, swimming instructors, or other employees of the state or counties responsible for the safety of the public at swimming pools or on beaches;
- Employees authorized to carry or use, or both, firearms on the job;
- Emergency medical services employees of the state or counties;
- Employees who administer or may administer controlled substances or other drugs to patients, whether in hospitals, nursing homes, or in emergency situations such as would be encountered by emergency medical services personnel;
- Employees who work with children, the elderly, or other vulnerable populations;
- Civil defense emergency management personnel; and
- Employees who operate or are in physical control of any of the following:
(1) Any combination of vehicles that have a gross combination weight rating or gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit or units with a gross vehicle weight rating or gross vehicle weight of more than 10,000 pounds, whichever is greater;
(2) Any single vehicle that has a gross vehicle weight rating or gross vehicle weight of 26,001 pounds or more, or any such vehicle towing a vehicle with a gross vehicle weight rating or gross vehicle weight that does not exceed 10,000 pounds;
(3) Any single vehicle, or combination of vehicles, that does not meet the definition of class A or class B, but is either designed to transport 16 or more passengers, including the driver, or is transporting material that has been designated as hazardous under title 49 U.S.C. section 5103 and is required to be placarded under subpart F of 49 C.F.R. part 172, or is transporting any quantity of a material listed as a select agent or toxin in 42 C.F.R. part 73;
(4) Public utilities, such as the electrical power grid or the water source;
(5) Machinery or power equipment; or
(6) A motor vehicle.
Employers with operations in Hawaii should closely monitor the bill’s movement through the state legislature. If enacted, the law will join the growing list of states and localities enacting specific laws that provide clear employment protections to cannabis users.