HB673 SD1

SECTION 1. The legislature finds that as licensed medical cannabis dispensaries are still a new and emerging industry since their establishment in 2015, most production centers and facilities have only been operating for less than two years. The legislature further finds that there may be situations where the leadership within a licensed dispensary has changed; however, existing law does not provide a process for the sale or transfer of any significant interest in a licensed dispensary.

The legislature also finds that although the medical use of cannabis by a qualifying patient to alleviate the symptoms or effects of the qualifying patient's debilitating medical condition is permitted under state law, there are no corresponding employment protections for qualifying patients. A qualifying patient can therefore be discriminated against in the hiring process, merely because of the patient's status as a qualifying patient, or fired at an employer's discretion for failing a drug test, even if the qualifying patient is not exhibiting any symptoms of being impaired.

Accordingly, the purpose of this Act is to:

(1) Provide a process for the voluntary or involuntary sale or transfer of a dispensary license;

(2) Prohibit an employer from discriminating against an employee based on the employee's status as a qualifying patient;

(3) Prohibit an employer from taking action against an employee based solely on the employee's status as a qualifying patient or if the results of the employee's drug test are positive for cannabis; and

(4) Specify permissible and impermissible actions by employers and employees.

SECTION 2. Chapter 329D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§329D- Sale or transfer of dispensary license. (a) In the event of death, legal incapacity, or permanent disability of an individual dispensary licensee, the relevant entity licensee shall notify the department within thirty days of the individual licensee's inability to continue in the individual's capacity as a licensee, and shall provide to the department within another thirty days a plan for the sale or transfer of the individual license to another individual who shall meet all the requirements under this chapter and shall have been a resident of the State for not less than five years preceding the date of transfer.

(b) In the event of a voluntary resignation by an individual licensee, termination of an individual licensee's employment with an entity licensee with or without cause, or any other permanent separation of the relationship between an individual licensee and an entity licensee, the relevant entity licensee shall submit a plan to the department for approval at least thirty days prior to any sale or transfer of the individual license to another individual who shall meet all the requirements under this chapter and shall have been a resident of the State for not less than five years preceding the date of transfer.

(c) The department may deny a request for transfer of ownership if it deems the transferee has failed to meet all the requirements of section 329D-3 for ownership."

SECTION 3. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:

"§378- Qualifying patient; employment; employees; employers; nondiscrimination; prohibitions. (a) An employer shall not:

(1) Discriminate against a person in hiring, termination, or imposing any term or condition of employment or otherwise penalize a person based on that person's status as a qualifying patient; or

(2) Take action against an employee solely based upon the employee's status as a qualifying patient or if the results of such employee's drug test show positive for cannabis or its components;

unless the employee is a law enforcement officer in the State or the employee works in a state correctional facility, or unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations.

(b) This section shall not prohibit an employer from:

(1) Enforcing a workplace drug policy; provided the policy is applied in a nondiscriminatory manner and does not conflict with the nondiscrimination provisions under subsection (a);

(2) Disciplining an employee who is a qualifying patient for failing a drug test, if:

(A) Failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations;

(B) The employee performs employment duties at heights or in confined spaces; or

(i) Chemicals that require a permit issued by the federal government, state government, or an agency of the federal government or state government; or

(ii) High voltage electricity lines; or

(3) Disciplining an employee who is a qualifying patient if the employer has a reasonable belief that the employee is impaired; provided that an employer that elects to discipline an employee under this paragraph shall afford the employee a reasonable opportunity to contest the basis of the determination.

(c) Nothing in this section shall be construed to create or imply a cause of action for any person against an employer for:

(1) Actions based on the employer's reasonable belief that a registered qualifying patient was impaired while working on the employer's premises during the hours of employment; or

(2) Injury or loss to a third party based on an employee's impairment if the employer neither knew nor had reason to know that the employee was impaired.

(d) Nothing in this section shall be construed to interfere with any federal restrictions on employment, including but not limited to the United States Department of Transportation regulations pursuant to title 49 Code of Federal Regulations section 40.151(e).

(e) For purposes of this section:

"Impaired" means an employee who is a qualifying patient and who manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior; negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others; involvement in an accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.

"Qualifying patient" shall have the same meaning as in section 329-121."

SECTION 4. Chapter 378, Hawaii Revised Statutes, is amended by amending the title of part III to read as follows:

"PART III. UNLAWFUL [~~SUSPENSION OR DISCHARGE~~] EMPLOYMENT ACTIONS"

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2019.

HOUSE OF REPRESENTATIVES	H.B. NO.	673
THIRTIETH LEGISLATURE, 2019		H.D. 2
STATE OF HAWAII		S.D. 1