SB1291 HD2.DOC

SECTION 1. The legislature finds that support for the medical use of marijuana in the State is strong and that the experience of the State with the medical use of marijuana has been favorable, but that existing protections for patients are very weak regarding civil penalties. Patients within the medical marijuana program should not be less secure in their employment, housing, school enrollment, or supplemental medical care than patients who have made different private decisions with their doctors concerning medication or treatment.

The legislature is mindful of the difficult position of medical marijuana patients under federal law and seeks to ensure that the rights of patients are protected, while at the same time respecting the needs of institutions and individuals to protect themselves from federal penalties. For this reason, the rights afforded under this Act are limited to those situations in which a school or landlord would not lose a monetary or licensing-related benefit for compliance with state law, and to those situations in which patients and caregivers are in strict compliance with the State's medical marijuana law.

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

"§329- Medical marijuana 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 marijuana 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 marijuana 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 marijuana 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) 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."

SECTION 3. Section 329-125, Hawaii Revised Statutes, is amended to read as follows:

"[[]§329-125[]] Protections afforded to a qualifying patient or primary caregiver. (a) A qualifying patient or the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana under this [[]part[]] or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part.

(b) Any qualifying patient or primary caregiver not complying with the permitted scope of the medical use of marijuana shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of marijuana.

(c) No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of marijuana as permitted under this part.

(d) It shall be unlawful for any employer to discipline, suspend, discharge, or discriminate against any of the employer's employees solely because the employee tested positive for the presence of marijuana or its metabolites in a substance abuse test conducted in accordance with section 329B-5 or section 329B-5.5; provided that:

(1) The qualifying patient strictly complied with the requirements of this part;

(2) Nothing in this section shall be construed to authorize the use of medical marijuana in the workplace of an employee's employment;

(3) Nothing in this section shall be construed to supersede any statute, rule, employment contract, collective bargaining agreement, or workplace regulation or policy prohibiting an employee from being under the influence of marijuana while working in the workplace of the employee's employment; and

(4) Nothing in this section shall be construed to affect the rights of a person with disabilities who is a qualified medical marijuana patient to request a reasonable accommodation in employment in accordance with Hawaii Administrative Rules Section 12-46-187 if the person tests positive for marijuana use, except that reasonable accommodation does not include intoxication or marijuana use at work."

SECTION 4. Chapter 421J, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§421J- Medical marijuana; discrimination. A provision in any association documents allowing for any of the discriminatory practices listed in paragraphs (1) to (7) of section 515-3 against a person residing in a unit who has a valid certificate for the medical use of marijuana as provided in section 329-123 in any form is void, unless the association documents prohibit smoking tobacco and the medical marijuana is used by means of smoking."

SECTION 5. Chapter 514A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§514A- Medical marijuana; discrimination. A provision in any articles of incorporation, declaration, bylaws, administrative rules, house rules, association documents, or a similar document of a condominium property regime allowing for any of the discriminatory practices listed in paragraphs (1) to (7) of section 515-3 against a person residing in an apartment who has a valid certificate for the medical use of marijuana as provided in section 329-123 in any form is void, unless such documents prohibit smoking tobacco and the medical marijuana is used by means of smoking."

SECTION 6. Chapter 514B, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§514B- Medical marijuana; discrimination. A provision in any articles of incorporation, declaration, bylaws, administrative rules, house rules, or association documents allowing for any of the discriminatory practices listed in paragraphs (1) to (7) of section 515-3 against a person residing in a unit who has a valid certificate for the medical use of marijuana as provided in section 329-123 in any form is void, unless such documents prohibit smoking tobacco and the medical marijuana is used by means of smoking."

SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on January 7, 2112.

THE SENATE	S.B. NO.	1291
TWENTY-EIGHTH LEGISLATURE, 2015		S.D. 2
STATE OF HAWAII		H.D. 2