California Passes Bill To Protect Workers Who Smoke Pot Off The Clock

Tobacco-free workplaces may soon be the norm in California, making it the sixth state in the US.

On Tuesday, the California Senate voted to approve Assembly Bill 2188, which would change state anti-discrimination statutes and the Fair Employment and Housing Act to prohibit employers from penalizing workers who test positive for cannabis usage outside of work.

Pre-employment drug screenings commonly include a hair or urine sample. A positive result indicates that the applicant has recently used marijuana, even if they are not currently under the influence. Nothing in the bill would affect the use of other tests to ascertain whether or not an employee is high at the time of testing.

The bill has been sent to the desk of Governor Gavin Newsom, who has until the end of September to sign it into law or veto it. The law, if passed, would take effect on January 1, 2024.

Six other states (Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island) now have legislation to shield workers who use marijuana in their private lives and during their time away from the office.

Laboratory tests for drugs often collect a urine or hair sample and analyze it for THC, the major psychoactive ingredient in marijuana. According to medical professionals, these metabolites can remain in a person's system for days, or even weeks in the case of regular smokers, causing them to test positive on a screening even though they are not high at the testing time.

Employers would be barred under the new law from taking any adverse action against workers who test positive. It does not prevent them from conducting additional testing, such as saliva tests, from trying to ascertain whether an employee is high at present.

Employees in the building and construction industries, government contractors, federally funded employees, and federal licensees mandated to ensure drug-free workplaces would still be excluded.

The author of the bill Bill Quirk (D-Hayward), stressed that workers would not be able to show up to work impaired.

California was the first state to legalize medical marijuana in 1996 and was among the first to legalize recreational cannabis in 2016. Despite this, the state has done little to protect workers who smoke marijuana in their spare time.

It would "create an unprecedented, protected class for marijuana users and threatens businesses' capacity to maintain a safe and drug-free workplace," according to an open letter from the California Chamber of Commerce to state lawmakers expressing opposition to the bill.

The letter says, "Simply put, protecting workers from discrimination based on race or national origin is not the same as protecting them from marijuana use."

However, labor organizations like United Food and Commercial Workers Local 324 say that workers shouldn't be punished for their actions outside of work as long as they are within the law.

 For UFCW 324's secretary-treasurer, "using obsolete cannabis testing just leads employees to feel insecure and harassed at work" is false.