Employers Couldn’t Fire Workers For Off-Site Cannabis Use Under California Bill

When California voters legalized recreational marijuana use in 2016, workplace regulations were left in the hands of employers. A new bill proposed by Assembly Member Bill Quirk, D-Hayward, would change that.AB2188 would prevent employers from penalizing workers who use cannabis outside of work hours. Employees could still be fired for being impaired while on the clock. It would also set new standards for employer-administered drug-screening tests.

“Nothing in this bill says that workers are able to use cannabis and come to the workplace high,” said California Employment Lawyers Association Legislative Counsel Mariko Yoshihara. “It simply allows a person to use cannabis off the job, like any other legal substance, without facing discrimination.”

Most drug tests used by employers detect only inactive cannabis compounds, which don’t reveal whether an employee is actively inhibited, according to the bill. The tests, which typically analyze urine samples, can pick up drug use from days or weeks prior.

Should AB2188 pass, employers would no longer be allowed to use such tests, which advocates have called outdated. The bill will be voted on by the state Senate sometime this week and would go into effect in 2024 if signed into law by Gov. Gavin Newsom.

“What people don’t understand is that there has never been a single FDA study showing that this type of drug testing is effective in protecting job safety or productivity,” said Dale Gieringer, who has been involved with marijuana-related advocacy since the 1980s. “It’s similar to looking through workers’ garbage cans, seeing empty beer and wine bottles and firing them for being drunk.”

Gieringer, who leads the California branch of the National Organization for the Reform of Marijuana Laws, said he considers current testing a “violation of personal privacy.”

AB2188 would instead call on employers to administer tests that check for tetrahydrocannabinol, or THC, the presence of which would indicate whether an employee used cannabis within the past few hours.

“It’s more like one of those at-home antigen tests that we’re using for COVID,” Quirk said. “It’s a lot easier to take a sample and get a reading, and it’s a better way to achieve a drug-free workplace.”

The measure would not apply to workers in the building and construction trades, nor would it preempt state or federal laws that require employees to be tested for certain jobs. Marijuana is not legal at the federal level.

The main opposition to the bill is being led by the California Chamber of Commerce. The powerful business group believes those fired for legitimate reasons may invoke the bill to say they were fired for marijuana use, creating more litigation for businesses, Chamber Policy Advocate Robert Moutrie said.

“We talked to the office about alternatives, but sadly, we could not come together to resolve that litigation concern,” said Moutrie, who said he agreed with the measure’s provisions that would require testing for THC instead of nonpsychoactive cannabis metabolites.

Marijuana use in the country continues to climb. Quest Diagnostics, which administered over 6 million urine tests for employers nationwide, revealed that positivity rates for marijuana increased 8.3% from 2020 to 2021. Last year’s positivity rate, 3.9%, was the highest ever reported in the organization’s drug testing index.

“I’ve been on the war path against urine testing for a very long time,” Gieringer said. “We finally have come to a place where most legislators and Californians realize that these urinalysis tests shouldn’t be used.”


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