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California Lawmakers Pass Bill Protecting Workers’ Off-Duty Cannabis Use

On Tuesday, California legislators approved a bill that would protect workers who smoke marijuana while on the job. If approved by the governor, the legislation would make California the seventh state in the nation to pass employment protections for workers’ off-duty cannabis use.

The measure, Assembly Bill 2188 (AB-2188), would “make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person” solely because of marijuana use while off the job, according to an abstract of the legislation. Assemblymember Bill Quirk was the bill’s sponsor. He noted, however, that AB-2188 prohibits people from working while they are impaired.

“Nothing in this bill would allow someone to come (to work) high,” said Quirk.

Employers would not be allowed to take action against employees who fail to submit to a hair or urine screening. These tests, which measure or detect cannabis metabolites, only indicate that the individual ingested the drug at some time, possibly weeks, before they are taken. They do not show any impairment.

Cannabis advocates and labor groups like the United Food and Commercial Workers (UFCW), Service Employees International Unions (SEIU), California Nurses Association and CA Board of Registered Nursing support this legislation. According to supporters of the bill, employees shouldn’t have to be disciplined for using cannabis while on the job.

“Using outdated cannabis tests only causes employees to feel unsafe and harassed at work, it does not increase workplace safety,” said Matt Bell, secretary-treasurer for the United Food and Commercial Workers Local 324.

This legislation contains several exemptions that are intended to help employers. The bill does not apply to workers in the “building and construction trades” or to employees or applicants for positions that require a background check or security clearance under federal regulations. Additionally, the legislation does not preempt any federal or state statutes that require testing for controlled substances and would not apply to employment decisions based on “scientifically valid” pre-employment drug test methods “that do not screen for psychoactive cannabis metabolites.”

California is the pioneer in cannabis legalization

California became the first state in 1996 to allow medicinal cannabis use. Twenty years later, California voters allowed adults to use recreational marijuana. The National Organization for the Reform of Marijuana Laws (NORML) notes that six states (Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island) have enacted laws to protect workers’ use of recreational cannabis off the job and 21 states offer worker protections for medical marijuana patients.

“Cannabis is legal in California, and workers have a right to engage in legal activity while away from the job. Yet countless workers and job applicants are losing job opportunities or being fired because they test positive for legal, off-the-job use of marijuana on account of indiscriminate urine and hair metabolite tests,” said Dale Gieringer, the director of NORML’s California chapter. “Scientific studies have failed to show that urine testing is effective at preventing workplace accidents. Numerous studies have found that workers who test positive for metabolites have no higher risk of workplace accidents.”

The California Chamber of Commerce is opposed to the legislation because it would “create a protected status for marijuana use” in state law that bans discrimination in the workplace.

“Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin,” the business association wrote in a letter to state lawmakers.

AB-2188 passed first by California State Assembly, in May. It was then approved by the Senate with modifications on Monday. The Senate version of this measure was passed by the Assembly Tuesday. Gavin Newsom (Democratic Governor) will now sign the Senate version of the measure. Newsom has until September 30 to determine its fate. The bill will be effective January 1, 2024 if Newsom signs it into law.