A bill that would add protections to employees in California who consume cannabis off the clock is advancing and could head to the Senate floor shortly. The bill would disallow job discrimination from employers, in most cases, based on urine or hair tests that detect only inactive metabolites of THC.

Urine or hair tests only can detect inactive metabolites of THC days or weeks later, making them a poor indicator of impairment—or even recent use. The bill would still allow the use of oral swab or computer-based performance tests—which is actually a more reliable indicator of recent use or impairment.

While Assembly Bill 2188 would protect employees in California who smoke off the clock from inaccurate drug testing formats, it would continue to allow an employer to take action against employees who are impaired on the clock. There are also exemptions, of course, for federal workers and construction workers.

The bill is supported by the United Food and Commercial Workers (UFCW), Service Employees International Union (SEIU), California Nurses Association, CA Board of Registered Nursing, and UDW/AFSCME Local 3930. In addition, the California Employment Lawyers Association, United Cannabis Business Association, Cannabis Equity Policy Council, Americans for Safe Access, and California Cannabis Industry Association, also support the bill.

Employers generally don’t test for THC—only for THC metabolites, the waste product of THC, which urine tests and hair tests look at. Urine tests are not reliable indicator of impairment based on THC metabolites, nor do they have any value for employers who might have bigger things to worry about, such as alcoholism or opioid abuse. 

“This whole piss-testing regime is really the result of government fraud in the first place,” California NORML Director Dale Gieringer tells High Times. “There was never any good evidence that piss testing, in particular looking for metabolites, had anything to do with public safety.”

It’s nothing more than a remnant of the Reagan-era Drug-Free Workplace Act of 1988, which picked up amid the peak of “Just Say No” fever.

Gieringer continues, “There’s never been an FDA study to show that that’s true. I mean, if I had a new drug, or medical device, that I said, ‘If you give this to your employees, they will have fewer accidents, and they’ll be more reliable and better employees.’ If I had such a medical device, or drug, the FDA would require me to do doubleblind controlled clinical studies proving that that’s the case.”

“That was never, ever done for urine testing. It was basically a scam by former Reagan drug officials who—after leaving the government—went into the urine-testing business, and were well-connected, in general, with the government, who sort of decided that it would be profitable to require these tests a long time ago—the late ‘80s. And so we’re just putting an end to that fraud.”

California NORML issued a press release, urging Californians to reach out to their state senators. “Scientific studies have failed to show that urine testing is effective at preventing workplace accidents. Numerous studies have found that workers who test positive for metabolites have no higher risk of workplace accidents.”

“Ironically, under current drug testing rules, workers may use addictive opiates for medical use, but are forbidden to use medical cannabis, which has been shown to reduce opiate use,” Gieringer continued.

The California Assembly approved the bill, as well as the Senate Judiciary and Labor committees, and the bill was assigned to the Appropriations suspense file.

In the event that the bill is approved at a committee hearing on August 11, it will move to the Senate floor for a vote. California NORML is urging residents to write letter to your state senator in support of AB 2188.

“Twenty-one states currently have laws protecting employment rights for medical cannabis users, and five states (Nevada, New York, New Jersey, Montana and Connecticut) plus several cities (New York City, Washington DC, Philadelphia, Atlanta, Baltimore, Kansas City MO, Rochester NY and Richmond VA) protect recreational cannabis consumers’ employment rights,” added Cal NORML Deputy Director Ellen Komp. “California, a global leader in progressive causes, still has no protections for its workers who consume cannabis. It’s high time to change that and protect California’s workers.”

California could be next on the list to provide protections for employees who consume cannabis off the clock.

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