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Lawmakers consider punishment for discriminating against medical cannabis use. Is it too harsh?

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Lawmakers consider punishment for discriminating against medical cannabis use. Is it too harsh?

Feb 20, 2024 | 8:52 pm ET
By Alixel Cabrera
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Lawmakers consider punishment for discriminating against medical cannabis use. Is it too harsh?
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Senate Minority Leader Luz Escamilla, D-Salt Lake City, is pictured on the first day of the legislative session at the Capitol in Salt Lake City on Tuesday, Jan. 16, 2024. (Photo by Spenser Heaps for Utah News Dispatch)

Routine annual clean-up legislation on medical cannabis aims to fine-tune a number of issues around the permitted use of marijuana. One of them is treating cannabis as a regular medicine in cases of workplace discrimination.

Some Utah municipalities have asked employees to disclose if they are medical cannabis cardholders and then used that information to retaliate against them, said Senate Minority Leader Luz Escamilla, D-Salt Lake City, who is sponsoring the bill. That’s against state law. Utah code, however, doesn’t delineate any consequences for those who break the law.

SB233, titled Medical Cannabis Amendments, tries to find punishment for those discrimination cases by withholding future state appropriations from state agencies or other political subdivisions, the bill reads.

The bill had already passed a first vote by the Senate but the sponsor circled it to address concerns about penalties. 

“We create a due process for people to go to the Labor Commission like they will do with any other type of discriminatory practices,” Escamilla told reporters on Tuesday, “and create an avenue for that person to get due process.”

It’s maybe “harsh” wording, she said, but she’s willing to find middle ground to take the bill to the finish line.

“We’ve seen in some cities that their district attorneys are saying ‘you don’t have to follow state law because this is a prohibited substance … federal law supersedes state law’ but we know when it comes to cannabis, we’ve made that decision as a state,” Escamilla said. “We’re trying to find a mechanism that we can bring consequences if specific political subdivisions want to go that route.”

Those municipalities that discriminate against the prescribed medication and pressure employees to disclose they are card holders are even potentially violating Health Insurance Portability and Accountability Act protections, she said. 

There are exceptions, however. First responders still aren’t allowed to use medical cannabis 12 hours before a shift.

Senate Majority Leader Evan Vickers, R-Cedar City, who is part of the Legislature’s Medical Cannabis Governance Structure Working Group, said discrimination has happened typically in fire departments. The group has sent letters to a municipality that was in violation, asking that it follow state law. But, he said, it refused it and has taken punitive action against some employees.

Sen. Todd Weiler, R-Woods Cross, worried that the only state appropriation that would be pulled from cities under the bill is funding for law enforcement, so he worried they would be punished when they didn’t commit any wrongdoing.

Escamilla clarified that nothing in the bill touches law enforcement grants. But Weiler had other concerns as well.

“I’m also concerned that cities have employees who operate large machinery like snowplows, or drive vehicles, or work with children or vulnerable adults, and work in other hazardous or dangerous positions that may actually make sense to not have them on marijuana while they’re doing those things,” Weiler said. “And this bill imposes some fairly draconian measures to punish an employer who may be trying to just keep their citizens safe.”

Sen. Mike Kennedy, R-Alpine, also expressed concern about potentially withholding “tens, if not hundreds of millions of dollars,” recommending establishing a limit to the amount the state could withhold from cities. It’s an option Escamilla said she would consider. Kennedy also said the portion of the bill that establishes the penalty could bring unintended consequences.

“I would screen these individuals out and not hire them in the first place if I had these kinds of egregious threats that were behind the possibilities that they might file some sort of discrimination component in the future use of their, (I) suppose, medicine,” he said.

Sen. Daniel Thatcher, R-West Valley City, defended the bill, explaining that if the state chose to allow doctors to recommend the use of medical cannabis, it should be treated like other medicines. Some lobbyists, he said, have inaccurately represented the potential outcomes of the new provision.

If the bill fails, the state still prohibits discriminating against employees with medical cannabis cards. But personal beliefs are prevailing over the law, he said.

“Regardless of how I feel, or you feel, or they feel about the medicine (and) benefits of marijuana, the law says they can’t do what they’re doing. And they’re doing it anyway. So even after we passed two years ago a bill that even more explicitly spells out (that discrimination is forbidden), they’re still doing it,” he said. “So without some type of enforcement mechanism, they will continue to substitute their own opinions and their own wishes over the law of the state of Utah. And I think that that is unacceptable.”