California Bosses Must Prove Workers Are High Under New Pot Law

Joint California bosses
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California bosses can’t discipline workers for using cannabis in free time
THC breathalyzers could detect marijuana use within hours

California bosses have 15 months to figure out the best way to determine if employees are impaired and trying to do their jobs after smoking marijuana or eating cannabis-infused snacks.

Attorneys and scientists say there’s currently no way to do that accurately.

“None of these workforce drug tests are able to assess impairment,” said Barry Sample, senior science consultant for Quest Diagnostics Inc.’s Employer Solutions franchise.

California Gov. Gavin Newsom (D) on Sunday signed a measure (A.B. 2188) that prohibits employers from discriminating against workers who use cannabis in their off-work hours. The new law goes in effect Jan. 1, 2024.

Standard drug tests detect metabolites in urine and hair, the result of the breakdown of tetrahydrocannabinol (THC) molecules that can stay in one’s system for several days or, in some cases, weeks.

Because the THC detected in these tests can’t determine if a marijuana user’s brain function was impaired on the job, employers can no longer rely on them to settle the cause of an workplace accident, for example. The tests can still be used before a worker is hired, for construction jobs, and for positions that require federal oversight.

Supporters of the new mandate expect examinations to shift toward saliva tests, which can pick up THC ingested in the past 24 to 36 hours. That’s a much narrower detection window than for urine tests, Sample said, though still not providing a definitive answer on whether someone is under the influence at the time of the test.

Tech companies are developing tools to shrink that window to just a few hours.

For instance, a machine that’s not yet on the market is promoted as being able to yield results within minutes. The developer, Hound Labs Inc., said it plans to sell the breathalyzers by the end of the year. Vancouver-based Cannabix Technologies Inc. said it’s testing a similar device.

‘A Mess’
Employment lawyers aren’t sure how their clients will be able comply with the law.

“The statute would be a mess for employers,” said Scott J. Witlin, who practices law with Barnes & Thornburg LLP in Los Angeles.

In particular, Witlin is concerned that the statute amends California’s Fair Employment and Housing Act (FEHA) to protect cannabis users in the same manner as minorities, women, veterans, immigrants, and others who may face illegal discrimination in the workplace.

“It gives the pot smoker the same kind of remedies as someone who is the victim of sexual harassment,” he said.

But discipline against those who smoke or ingest marijuana disproportionately affects workers of color, said Lauren Teukolsky, who represents workers in court. It was one of the reasons Inc. stopped drug testing during the hiring process.

The new law shielding marijuana consumers “is entirely consistent with FEHA’s aim of eliminating discrimination against people of color in the workplace,” Teukolsky said in an email.

California was the first state to legalize medical marijuana in 1996. Two decades later, voters approved recreational marijuana via a ballot measure.

Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island already have statutes to protect employees who use cannabis in their free time.