California Legislature passes legislation protecting off-duty workers’ cannabis use

California lawmakers on Tuesday finally approved a bill to protect employees who use marijuana outside of work. If approved by the governor, the law would make California the seventh state in the nation to implement employment protections for off-duty cannabis use.

The measure, Assembly Bill 2188 (AB-2188), would “make it unlawful for an employer to discriminate against or otherwise penalize a person in the hiring, termination or any length or condition of employment” solely because of the marijuana -Consumption while unemployed, according to an excerpt from the law. But MP Bill Quirk, the sponsor of the legislation, noted that AB-2188 does not allow people to work while impaired by cannabis.

“Nothing in this bill would allow anyone to get up[to work],” Quirk said.

Under the legislation, employers would be prohibited from taking action against an employee who fails a urine or hair test for cannabis metabolites. Tests that measure or detect the presence of cannabis metabolites only show that the individual was ingesting cannabis at a specific time, possibly weeks before the sample was collected, and are not indicative of current impairment.

The legislation has the support of cannabis advocates and working groups, including United Food and Commercial Workers (UFCW), Service Employees International Union (SEIU), California Nurses Association, CA Board of Registered Nursing, and UDW/AFSCME Local 3930. Supporters of the bill argue that Employees should not be penalized for using marijuana outside of work hours.

“The use of outdated cannabis tests only makes employees feel unsafe and harassed at work, it does not increase workplace safety,” said Matt Bell, secretary and treasurer of United Food and Commercial Workers Local 324.

The legislation contains several exceptions to protect employers. The bill does not apply to workers in the “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 pre-empt federal or state laws requiring controlled substance testing, and would not apply to employment decisions based on “scientifically valid” pre-employment drug testing methods “that do not test for psychoactive cannabis metabolites.”

California pioneered the legalization of cannabis

California was the first state to legalize the medical use of cannabis in 1996, and 20 years later voters legalized adult recreational use of 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 restrict recreational cannabis use by employees outside of work and 21 states offer worker protections for medical marijuana patients.

“Cannabis is legal in California and workers have the right to engage in legal activities when they are not at work. Yet countless workers and job applicants lose job opportunities or are fired for testing positive for legal, non-occupational marijuana use based on indiscriminate urine and hair metabolite tests,” said Dale Gieringer, director of NORML’s California division. “Scientific studies have not shown that urine testing is effective in preventing workplace accidents. Numerous studies have shown that workers who test positive for metabolites do not have a higher risk of accidents at work.”

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

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

AB-2188 was first passed by the California State Assembly in May, followed by approval with amendments by the state Senate on Monday. On Tuesday, the assembly approved the Senate version of the measure. The bill now goes to the desk of Democratic Gov. Gavin Newsom, who has until the end of September to decide its fate. If Newsom signs the law, it will go into effect on January 1, 2024.