California Lawmakers Protect Employees Who Use Cannabis Outside Work

Smoking a joint California Lawmakers
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California lawmakers passed a bill that would protect employees who use marijuana while they’re off the clock.

It’s been six years since California legalized recreational marijuana, but workers in the state can still face punishment if they fail cannabis tests required by their employers.

That could soon change.

This week, California lawmakers in Sacramento passed a bill that would protect employees who use marijuana while they’re off the clock — a win for cannabis reformers after earlier versions of the measure stalled in previous legislative sessions. If the governor signs it, California would become the seventh state to restrict companies from penalizing employees who get high on their own time.

The legislation is part of a broader nationwide shift in drug policy that involves creating protections for marijuana users that weren’t included in the wave of cannabis legalization laws adopted in recent years.

“It’s a bigger trend of moving beyond just legalizing marijuana, stopping arrests and stopping throwing people in jail for using it,” said Robert Mikos, an expert on drug law at Vanderbilt University. “It’s providing the same level of legal rights and protections for marijuana users that you have for users of prescription drugs, alcohol and tobacco.”

There’s no single reason that officials have been slow to get employment protections on the books as states have changed cannabis laws, Mikos said. Some may have been wary of workplace safety concerns related to marijuana use, he said. Others may have worried about rankling employers and prompting them to lobby against legalization when it was up for debate.

It also could have simply been an oversight, Mikos said.

“There are lots of statutes that already protect people for using other medications or for engaging in legal activities off the job,” he said. “So lawmakers might have thought other statutes would protect medical or recreational marijuana users. In a lot of places, that proved to be false.”

Now, he said, “they’re filling in the gaps and making it clear that the same laws that protect drinkers of bourbon on the weekend protect people who use marijuana on the weekend.”

California’s bill, sponsored by Assembly member Bill Quirk, a Democrat from the Bay Area, amends the state’s anti-discrimination and employment laws. Employers would be barred in most cases from penalizing workers “based upon the person’s use of cannabis off the job and away from the workplace,” according to the text.

The bill notes that common marijuana tests — those that use urine or hair samples to indicate whether someone has recently used pot — detect only the presence of cannabis molecules and have “no correlation to impairment on the job.” The legislation would essentially render those tests irrelevant for many employers. But it would still allow them to punish workers who fail saliva tests that detect whether a person is high at the worksite. And employers could still bar workers from possessing cannabis at work.

Not all companies and employees would be subject to the restrictions. The bill contains exclusions for federal contractors, companies that receive federal funding, and employees hired for jobs that require a federal background investigation. The possession, sale and cultivation of marijuana remain criminal offenses under federal law.

Similar laws have already been adopted in Connecticut, Montana, Nevada, New Jersey, New York and Rhode Island, according to the marijuana reform group NORML. More than a dozen other states extend such protections to medical marijuana users.

Adding California, the nation’s most populous state, to the list “would at the very least add momentum for others,” Mikos said.

“It gives other states a well-written short statute that they can copy past into their law books,” he said.

A representative for California Gov. Gavin Newsom (D) didn’t immediately respond to a request for comment Thursday. Newsom has been a high-profile advocate for changing marijuana laws since his days as lieutenant governor. He was a driving force behind Proposition 64, the 2016 voter initiative to legalize cannabis in the state. This year, he cut a cannabis tax in an attempt to bolster growers facing rising costs.

The legislation has some powerful detractors. The California Chamber of Commerce called it a “job killer” when lawmakers were debating it earlier this year. The business advocacy group said in a statement that it would jeopardize workplace safety by making marijuana use a “protected class” under state law.

“The proposal also effectively prohibits preemployment drug testing,” the chamber said, “harming employers’ ability to keep their workplace safe and drug free.”

But the bill, known as AB 2188, has won support from labor unions, including the United Food and Commercial Workers Western States Council. In a statement this week on the bill’s passage, union members criticized testing used by many employers, calling it unreliable and ineffective in making workplaces safer.

“AB 2188 will not only have a significant impact on protecting workers from discrimination on the basis of their past cannabis use, but will start to turn the tide toward far more accurate, modern-day cannabis testing to detect recent use,” said Jenny Phan, a UFCW Local 324 member and employee at a cannabis dispensary in Long Beach.

“This bill addresses the flaws in employers’ use of cannabis testing methods, like urine tests, to discriminate against workers’ employment and rights,” she said in a statement. “Using oral swab tests are not only more accurate at detecting recent use, but a step toward ending the stigma of cannabis use.”