California employers would be barred from discriminating against employees for cannabis use while off the job under legislation introduced last week. The measure, AB 2188, was introduced in the California Assembly by Democratic Assembly Member Bill Quirk on February 15.

If passed, AB 2188 would end discrimination based on drug testing for cannabis metabolites, which are non-psychoactive substances that can be detected in a person’s bodily fluids for up to several weeks after they have consumed cannabis. 

“The bill would make it unlawful for California employers to penalize or discriminate against a person when making decisions about hiring, termination, or other aspect of employment if the discrimination is based on the person’s off-duty cannabis use or the presence of non-psychoactive cannabis metabolites revealed in an employer-mandated drug screening,” Lauren Mendelsohn, an attorney with the Law Offices of Omar Figueroa in Sebastopol, California, explained in an email to High Times.

The legislation, however, has several limitations. Employers who are required to follow federal drug-testing mandates are exempt. AB 2188 does not require employers to permit employees to be high while working.

“The bill does not authorize employees to use or be impaired by cannabis while on the job, nor does it prohibit employers from administering impairment or chemical tests to determine whether an employee is impaired or has an active presence of THC in their system,” Mendelsohn noted. “Employers who are required to conduct screening tests for non-psychoactive cannabis metabolites, or who would lose federal benefits if they did not, may do so.”

Quirk’s bill is supported by the California chapter of the National Organization for the Reform of Marijuana Laws (Cal NORML). In a statement, the cannabis policy reform advocacy group said that “testing or threatening to test bodily fluids for cannabis metabolites is the most common way that employers harass and discriminate against employees who lawfully use cannabis in the privacy of their own homes.” Cal NORML noted that a survey being conducted online shows that 33 percent of respondents have been denied  employment due to testing positive for marijuana, while 60 percent have stopped using cannabis because of drug testing by their employer or doctor.

Protecting the Rights of Cannabis Users

Attorney S. Edward Wicker of Wicker Law in San Diego believes that AB 2188 is necessary to protect the rights afforded Californians by cannabis legalization and noted that positive drug tests for cannabis use are not an effective method of determining if an employee is impaired on the job.

“This legislation is needed to bring fairness and science-based legal protection for California workers. Current California law allows adults to consume and possess cannabis,” Wicker, who is also the director of San Diego NORML, wrote in an email. “This liberty is at risk when employers use a non-scientific test to discriminate against workers for cannabis use. Cannabis law is evolving from prohibition as what still exists at the federal level to a policy of legalization supported by a majority of Americans. Policies based on prohibition rely on inertia and non-scientific data.”

Cal NORML noted that studies have shown that off-the-job cannabis use is not associated with an increase in work-related injuries or accidents and that jurisdictions with liberalized marijuana laws are associated with greater workforce participation, higher wages, lower rates of employee absenteeism, and declines in workers’ compensation claims.

“Testing bodily fluids for cannabis metabolites is another example of a non-scientific approach to cannabis policy,” Wicker continued. “The presence of cannabis metabolites is not indicative of whether a person is under the influence of cannabis. A person can test positive for cannabis metabolites days to weeks after any cannabis use. This is no indication of any impairment for any work-related purpose except for arbitrary discrimination.”

Five states including New York and New Jersey have passed laws to protect the employment rights of recreational cannabis users and similar legislation was introduced in the Colorado legislature earlier this month. Legislation to protect medical marijuana patients has been passed in 21 states.

“It’s high time California protected its workers’ rights also,” said Dale Gieringer, the director of California NORML.

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