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New California law gives protections to workers who use marijuana outside work

California employers will be prohibited from discharging employees or refusing to hire individuals based on their off-duty use of marijuana. Gov. Gavin Newsom signed the workplace marijuana legislation on Sept.
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California employers will be prohibited from discharging employees or refusing to hire individuals based on their off-duty use of marijuana. 

Gov. Gavin Newsom signed the workplace marijuana legislation on Sept. 18, among a series of cannabis-related bills that address harms from past cannabis bans. The new legislation goes into effect on Jan 1, 2024. 

“For too many Californians, the promise of cannabis legalization remains out of reach,” said Governor Newsom. “These measures build on the important strides our state has made toward this goal, but much work remains to build an equitable, safe, and sustainable legal cannabis industry. I look forward to partnering with the Legislature and policymakers to fully realize cannabis legalization in communities across California.” 

The bill, authored by Assemblymember Bill Quirk (D-Hayward) authored AB 2188, amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination against an individual based on “an employer-required drug screening test” that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The legislation cites a March 2021 case from the State Personnel Board regarding the dismissal of a CalTrans maintenance worker for testing positive for THC upon his return to duty after a leave of absence. In upholding the Administrative Law Judge's decision to revoke his termination, the SPB ruled that a positive urinalysis test for marijuana, on its own, is not grounds for dismissal.

"When most employers conduct a drug test, they typically screen for the presence of nonpsychoactive cannabis metabolites, which can remain present in an individual's bodily fluids for weeks after cannabis use and do not indicate impairment. While there is consensus that no one should ever show up to work high or impaired, testing positive for this metabolite does not correlate with workplace safety or productivity,” Quirk wrote in a statement. 

The legislation clarifies that they can continue to test for Tetrahydrocannabinol (THC), which may indicate an individual is impaired at work. According to Quirk, this test is a better way to maintain workplace safety. 

The law excludes certain groups of employees but does not protect employees in the building and construction trades. The law does not apply to “applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense,” or other federal agencies.

The bill “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”

In a letter of support, the California NORML, the bill’s sponsor said “not a single, scientifically controlled FDA study has shown cannabis metabolite testing to be effective in improving workplace safety or productivity. Studies indicate that metabolite tests for past use of marijuana are useless in protecting job safety.” 

Those against the bill, including the California Chamber of Commerce, said employers may face liability when they take legitimate disciplinary measures against their employees. 

“Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin and should not be in FEHA. California employers should not have to fight out proper, impairment-based terminations in FEHA. Moreover, employers must be able to keep their workplace safe by disciplining employees who arrive at work impaired,” wrote the California Chamber of Commerce in a statement.