SB64

SECTION 1. The legislature recognizes that the use of medical cannabis in Hawaii has been legal since 2000 and that subsequent laws were passed to establish a licensing program for a statewide system of medical cannabis dispensaries to ensure access for qualifying patients. The department of health recently reported that there are over twenty-nine thousand patients with a valid medical cannabis registration. The legislature further finds that while thirty-three states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have approved comprehensive medical cannabis programs, only about a dozen states have enacted anti-discrimination employment laws to protect qualifying patients. Though the medical use of cannabis has become increasingly accepted, qualifying patients risk losing their jobs because there are no clear protections against employment discrimination.

The legislature further finds that the ongoing conflict between state and federal medical cannabis laws causes confusion for employers, who are unsure whether state medical cannabis laws supersede their power to enforce drug-free workplace policies against employees. The courts have consistently ruled in favor of employers when qualifying patients challenge drug-free workplace policies; yet, on the other hand, they have not entirely foreclosed the possibility that state medical cannabis laws might operate to protect qualifying patients against employment discrimination. Without explicit statutory guidance, the courts may not properly balance the needs of qualifying patients for employment protections and an employer's need to provide a safe workplace.

The purpose of this Act is to:

(1) Prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment based on the person's status as a medical cannabis cardholder, under certain conditions;

(2) Specify that an employer may use a fit-for-duty test for medical cannabis qualifying patients in potentially dangerous occupations; and

(3) Specify certain categories of employment that are exempt from the protections of this Act.

SECTION 2. Section 329-125.5, Hawaii Revised Statutes, is amended to read as follows:

"§329-125.5 Medical cannabis patient and caregiver protections. (a) No school shall refuse to enroll or otherwise penalize, and no landlord shall refuse to lease property to or otherwise penalize, a person solely for the person's status as a qualifying patient or primary caregiver in the medical cannabis program under this part, unless failing to do so would cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulation; provided that the qualifying patient or primary caregiver strictly complied with the requirements of this part; provided further that the qualifying patient or primary caregiver shall present a medical cannabis registry card or certificate and photo identification, to ensure that the qualifying patient or primary caregiver is validly registered with the department of health pursuant to section 329-123.

(b) For the purposes of medical care, including organ transplants, a registered qualifying patient's use of cannabis in compliance with this part shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.

(c) Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under a contract or federal law, an employer shall not discriminate against a person in hiring, termination, or any term or condition of employment, other than that contained in a collective bargaining agreement, if the discrimination is based upon either of the following:

(1) The person's status as a cardholder; or

(2) 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;

provided that nothing in this subsection shall abridge any existing right of an employer to send an employee for medical evaluation when the employer has safety concerns about the impairment of the employee; provided further that an employer may take adverse action or discipline an employee who uses or possesses medical cannabis in the workplace and is impaired.

(d) In a potentially dangerous occupation, an employer may use a fit-for-duty test as a risk-based assessment tool for a registered qualifying patient.

(e) No employer shall have any liability to any employee who is injured or killed during the performance of the employee's job if the employee's impairment by medical cannabis was the sole contributing factor to the employee's death or injury.

(f) Subsection (c) shall not apply to:

(1) Law enforcement officers in the State or counties or employees of a state correctional facility;

(2) Firefighters employed by the State or counties;

(3) 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;

(4) Employees authorized to carry or use, or both, firearms on the job;

(5) Emergency medical services employees of the State or counties;

(6) Employees who administer or may administer controlled substances or other drugs to patients, whether in hospitals, nursing homes, or in emergency situations that would be encountered by emergency medical services personnel;

(7) Employees who work with children, the elderly, or other vulnerable populations;

(8) Civil defense emergency management personnel; and

(9) Employees who operate or are in physical control of any of the following:

(A) Any combination of vehicles that have a gross combination weight rating or gross combination weight of 11,794 kilograms or more (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 4,536 kilograms (10,000 pounds), whichever is greater;

(B) Any single vehicle that has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (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 4,536 kilograms (10,000 pounds);

(C) 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 sixteen 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;

(D) Public utilities, such as the electrical power grid or water source;

(E) Machinery or power equipment; or

(F) A motor vehicle.

[~~(c)~~] (g) No qualifying patient or primary caregiver under this part shall be denied custody of, visitation with, or parenting time with a minor, and there shall be no presumption of neglect or child endangerment, for conduct allowed under this part; provided that this subsection shall not apply if the qualifying patient's or primary caregiver's conduct created a danger to the safety of the minor, as established by a preponderance of the evidence.

[~~(d)~~] (h) This section shall apply to qualifying patients, primary caregivers, qualifying out-of-state patients, and caregivers of qualifying out-of-state patients who are validly registered with the department of health pursuant to this part and the administrative rules of the department of health."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	64
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII