Cannabis users’ right to work is progressing in California

Thousands upon thousands of California workers who have been wrongfully denied jobs or fired for unscientific marijuana testing could get new protections on Labor Day.

Assembly Bill 2188 passed the Legislature on Aug. 30 and goes to Gov. Gavin Newsom’s desk for either a signature or veto. If he signs the bill, workers’ rights across America will take a giant step forward.

AB 2188 prohibits employers from discriminating against workers solely for off-duty cannabis use. It would also end pre-employment urine testing, except for federal jobs and those in the building and construction trades.

Northern California MP Bill Quirk, a former NASA climate scientist, sponsored the bill. He argues that there is no scientific value in testing workers for marijuana in their urine. Consumer and patient groups like California NORML and Americans for Safe Access claim it’s also an unfair giveaway for testing companies. The North American drug testing industry was worth almost $2 billion in 2020, with projections of $4.5 billion in sales by 2028. Leading company Quest Diagnostics performed 11 million screenings in 2021.

“It’s time the law caught up with science.”

-Matt Bell, Treasurer, UFCW Local 324

“Not a single FDA-controlled scientifically-controlled study has shown cannabis metabolite testing to be effective in improving workplace safety or productivity,” reads a letter of support from California NORML.

A joint you smoked two weeks ago could get you fired if you report to work sober on Monday. The Mayo Clinic confirms that urine screening does not detect impairments in the workplace. In 2021, a California judge ruled that the state could fire a CalTrans employee for a failed urine test. The judge reinstated the worker.

Testing is a cold war on drugs

Despite legalization in 2016, about one in ten employers in California still tests. About one in 20 of those tests will come back positive for pot. Critics say urine testing is part of an ongoing cold war on drugs that is mostly preying on low-income, low-skilled workers in economically vulnerable retail and warehouse jobs.

AB 2188 tells California employers, “Do better.” Bosses would have to look for active THC, not chemical residues of the drug.

In opposition statements to the legislature, the California Chamber of Commerce says there is “no way” to look for active THC. You are disingenuous. Urinalysis is a Reagan-era technology. In 2022, employers can test saliva or breath for active THC, or simply do a coordination test on a smartphone or tablet. California’s unemployment rate is at a record low of 4.2% – companies can’t afford to lay off sober, responsible workers.

On Labor Day, two major unions, the UFCW and the SEIU, support the Workers’ Rights Act. Prohibiting workplace discrimination for off-duty cannabis use has been an issue in California since 2008, when the then-governor. Arnold Schwarzenegger vetoed Senator Mark Lenos’ bill. California once led the way in medical legalization in 1996 but has since fallen behind. Twenty-one states already have worker rights laws for medicinal cannabis, and five states, including Illinois and New York, protect recreational users.

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“California has always been a national leader in cannabis industry policy, and with AB 2188 we have an opportunity to lead again by prohibiting discrimination against workers who legally use cannabis when they are away from the workplace,” Matt said Bell, Secretary and Treasurer of UFCW Local 324. “Using outdated cannabis tests only makes employees feel unsafe and harassed at work, it does not increase workplace safety. UFCW members are proud to support AB 2188 because it’s time the law caught up with science.”

Activists note that urine testing is a component of systemic classism and racism. The highest rate of drug screening occurs in the Midwest and South, often targeting warehouse workers and other workers of color. In California, employers use urinalysis to avoid paying workers compensation. Workers who vape a Delta-8 cartridge on Friday and then injure themselves at work while sober on Monday can undergo a urine test to deny benefits.

If the law is passed, California officials estimate it will take 19 full-time employees to process an estimated 500 worker cannabis discrimination complaints per year.

Employers’ organizations would prefer to retain the right to fire sober workers for the time being.

“I am proud that my union supports this important law.”

—Jenny Phan, MedMen Long Beach contributor and UFCW Local 324 member.

“If California’s policymakers want to force a shift to newer testing technologies, that’s one thing…California employers shouldn’t have to fight reasonable, impairment-based terminations,” the Chamber of Commerce notes.

The UFCW states that it is time for employers to evolve.

“AB 2188 … will begin to turn the tide towards much more accurate, modern cannabis tests to detect recent use,” said Jenny Phan, an associate at MedMen Long Beach cannabis dispensary and a member of UFCW Local 324. “I’m proud that my union supports this important law.”

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Much remains to be done. In California, AB 2188 does not target groups such as probation officers, probation officers, seniors on opioids, and pregnant women and mothers — all of whom report THC discrimination by government agencies and healthcare providers.

You can Gov. Gavin Newsom to share your thoughts on this bill or the dozen other cannabis laws at this link. politicians listen. Other state legislatures may use the bill as sample language for their state versions.

Happy Labor Day Green Nation.

David Downs

David Downs leads news and lifestyle coverage as California Bureau Chief for Leafly.com. He has written for WIRED, Rolling Stone and Billboard and is a former cannabis editor of the San Francisco Chronicle and the author of several cannabis books including Ed Rosenthal’s and David Downs’ Marijuana Harvest. He is the co-host of the Hash podcast. TW: @davidrdowns | IG @daviddowns

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