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Starting on January 1, 2024, most Californians will be protected by a Cal NORML-sponsored bill (AB 2188 – GC 12954) which states that employers may not refuse to hire, fire, or penalize an employee based on the results of hair or urine tests for marijuana. Employees may not be impaired by cannabis on the job, and may be subject to an oral swab or blood test. Federal employees and those in the construction trades are not protected.
The new law will prohibit employers from discriminating against hiring, or terminating, a person who has tested positive for non-psychoactive cannabis metabolites in their urine, hair, or bodily fluids. It also allows employees who have experienced discrimination on the basis of testing positive for non-psychoactive cannabis metabolites, to institute civil action for damages and other relief against their employers.
The law does not interfere with employers’ right to maintain a drug-free workplace. It allows for other kinds of tests that can indicate actual impairment on the job, such as computer-based performance tests, and chemical tests for active THC in oral fluid or blood that are a better indicator of recent use. Not protected by the law are workers in the construction trades, and employees subject to federal drug-testing rules, like commercial truck drivers.
Companies (e.g. hospitals) that accept federal grants or funding are often required to follow the Drug-Free Workplace Act, but this does not require drug testing, only disallowing drug use on the job. The federal government has approved oral swab testing to replace urine testing for truck drivers and other federal workers, but has not yet approved any labs to process oral swab tests. Many major-drug testing companies are offering oral swab tests, which are less invasive than urine or hair tests.
Metabolite tests don’t detect actual impairment, but rather the presence of non-psychoactive cannabis residues that stay in the system days and weeks after use, long after effects have faded. Numerous studies have found that workers who test positive for metabolites have no higher risk of workplace accidents. Depending on their sensitivity, oral fluid and blood tests detect the presence of THC for only a few hours, or possibly up to one day. While they still don’t prove impairment, by detecting cannabis use within a more narrow window, they are a more reasonable and useful alternative to metabolite testing.
Testing or threatening to test bodily fluids for cannabis metabolites has been the most common way that employers harass and discriminate against employees who lawfully use cannabis in the privacy of their own homes. Studies have shown that black people are over twice as likely as white people to be reprimanded or fired for failing drug tests.
A 2023 bill, SB 700 (Bradford), has been signed into law and will also take effect on January 1, 2024. It bars most employers from from asking job applicants about their past marijuana use. An exception in the law allows employer is permitted to consider or inquire about that information as part of a criminal background check under Govt Code Section 12952, or other state or federal law.
Those who have been discriminated against due to off-the-job cannabis use, whether via pre-employment screening, or being disciplined or fired as an employee, can complain to the CA Civil Rights Department, and should also contact Cal NORML to make a complaint and possibly be connected with a private attorney who could help file a claim
DOWNLOAD A FLYER ABOUT CANNABIS CONSUMERS’ EMPLOYMENT RIGHTS IN CALIFORNIA
ALSO SEE:
9/18/2022 – Gov. Newsom Signs Bill to Protect Employment Rights of Cannabis Consumers, Other Reform Measures
9/1/2022 – California Legislature Passes Bill to Protect Rights of Workers Who Use Cannabis Off the Job
11/9/2021 – Oakland Public Safety Committee Votes to Prohibit Cannabis Metabolites Testing of City Employees
10/12/21 – LA COUNCILMEMBER RAMAN INTRODUCES RESOLUTION SUPPORTING EMPLOYMENT RIGHTS FOR CANNABIS USERS
7/6/2021 – Oakland City Council and SF Board of Supervisors Approve Resolutions to Support Employment Rights for Cannabis Users
6/15/2021 – The California State Personnel Board (SPB) ruled that the California Department of Transportation must reinstate an employee who failed a urine test for marijuana use, because such a test does not establish that an employee is under the influence of marijuana when reporting for duty. This ruling should protect most state workers against employment discrimination due to drug testing. Read more.
BACKGROUND
California’s Supreme Court ruled in 2008 that Prop. 215 does not grant workers’ rights, and a law passed to change that in 2008 was vetoed by Gov. Schwarzenegger. Cal NORML testified at a hearing on cannabis and employment rights in the CA Senate Labor Committee on November 9, 2019.
Until California’s law protecting employees who use cannabis off the job takes effect on 1/1/2024, California workers living with pain are currently forced to use more dangerous drugs like opiates, rather than medical cannabis. Many of these are front-line, essential workers like grocery store clerks that put themselves at risk for COVID infection daily, yet are unable to use their medicine or recreational relaxant of choice off the job. Over 30 studies have shown that legalizing marijuana can decrease opioid use, abuse, and/or overdose deaths.
A Cal NORML survey found that 24% of respondents have increased their use of opioid or other medications due to drug testing by their employer or doctor, 23% have been denied employment because of marijuana use, and 9.5% have been terminated from a job because of a drug test.
Employment drug testing has been shown in federal studies not to improve worker safety, but it’s a great way to discriminate against cannabis consumers.
OTHER STATES
See: State and City Laws Protecting Marijuana Users’ Employment Rights
Eight states, Washington, Nevada, New York, New Jersey, Connecticut, Montana, Rhode Island, and California have passed laws protecting employment rights of recreational marijuana users. In addition, the cities of Atlanta, New York City, Philadelphia, Washington DC, Baltimore MD, Rochester NY, Richmond VA, Isle, MN, Kansas City, MO, St. Louis, MO and Anchorage, AK have enacted ordinances protecting employment rights of marijuana users, either for city employees or for all workers in their cities.
Laws in twenty states: Arizona, Arkansas, Connecticut*, Delaware, Illinois, Maine, Maryland, Minnesota, Missouri, Montana*, Nevada*, New Jersey*, New Mexico, New York*, Oklahoma, Pennsylvania, Rhode Island,* South Dakota, Virginia and West Virginia specifically prohibit employers from discriminating against workers on the basis of their use of medical marijuana. Louisiana and Utah protect the employment rights of public employees who use medical marijuana. Washington, DC and Puerto Rico also protect the employment rights of medical marijuana patients. In addition, Massachusetts and Vermont protect medical marijuana patients’ employment rights under their disability laws, and the Supreme Court of New Hampshire has ruled that the state’s disability and accommodation law can cover medical marijuana patients on a case-by-case basis. *Also protect recreational users’ rights.
COURT RULINGS / FEDERAL BILLS
The rights of Massachusetts medical patients were recently upheld in court in 2017, as were those of patients in Rhode Island and Connecticut. Read more.
Other court decisions that have upheld employee rights:
2022: New Hampshire – Paine v. Ride-Away, Inc. – Employers must accommodate qualified patients enrolled in the state’s medical cannabis access program by exempting them from certain drug testing mandates
New Jersey – Wild v. Carriage Funeral Holdings LLC – Employers may not discriminate against patients who consume medical cannabis while away from the job
2019: Pennsylvania – Palmiter v. Commonwealth Health Systems – A former employee can sue their former employer for discrimination if they are let go for the lawful use of cannabis
2019: New Jersey: Wild v. Carriage Funeral Holdings LLC – Employers may not discriminate against patients who consume medical cannabis while away from the job. The NJ Supreme Court upheld the ruling.
2019: Arizona: Whitmire v. Walmart Stores Incorporated – An employee may not be terminated solely for testing positive for carboxy-THC
A pending bill in Congress, The Fairness in Federal Drug Testing Under State Laws Act, would protect the employment rights of federal employees in states with legal marijuana.
Join the Campaign! We will need your help to implement California’s new law
You can also support our efforts by joining Cal NORML.
Also see:
NORML Factsheet: Marijuana Legalization and Impact on the Workplace
Cannabis in the Workplace Comparative Law Review – a state-by-state analysis by Wilson Elser
An informative program from KALW radio on the topic
California Chamber of Commerce: Marijuana and Workplace Policies
MORE NEWS:
Join the Employment Rights for Cannabis Consumers Facebook Group for updates.
5/10/2023 – Washington Becomes Latest State to Ban Pre-Employment Tests for Cannabis
2/15/22: Cal NORML-sponsored Legislation Would Protect Employees’ Right to Use Cannabis Off the Job
Labor shortage accelerates shift away from drug testing for new hires 7/2021
FBI Loosens Marijuana Employment Policy For Would-Be Agents 7/21
GM’s Policy on Cannabis Use Partly to Blame for Worker Shortage: UAW 7/21
Track Star Sha’Carri Richardson Banned from Olympic Race Over Marijuana Test 7/21
Amazon ditched cannabis testing, and more employers will likely follow 6/21
NFL’s new CBA will eliminate suspensions for positive marijuana tests, limit the testing period to the first two weeks of training camp and raise the threshold for a positive test from 35 to 150 nanograms of THC. 3/20
Kevin Durant: Time to End NBA Ban on Marijuana 2/20
Survey: Employers’ Attitudes Shifting Regarding Drug Testing for Cannabis 2/20
MLB removing marijuana from list of banned substances 12/19
When the Law Says Using Marijuana is OK, But the Boss Disagrees 7/19
This New York Times story also ran in the SF Chronicle. It interviews three California women who lost job opportunities due to their marijuana use, despite legalization.
Federal Court Rules In Favor Of Worker Rejected For Medical Marijuana Use 9/18
A Connecticut woman’s rights under that state’s medical marijuana law were violated when a company refused to hire her on the basis of her legal cannabis use, and a lawsuit seeking damages against her would-be employer may proceed, a federal judge ruled. In 2016, Katelin Noffsinger filed suit against Bride Brook Health and Rehabilitation Center, a federal contractor, after a job offer was rescinded following a positive test for cannabis on a pre-employment drug test. Noffsinger had accepted a management-level position with the firm, which then scheduled a drug test. Prior to the test, Noffsinger informed Bride Brook that she was a qualified cannabis patient under Connecticut’s Palliative Use of Marijuana Act, and used the drug—namely, synthetic marijuana pills, consumed in the evening—to treat post-traumatic stress disorder following a 2012 car crash.
Bill To Protect Medical Marijuana Patients from Employment Discrimination Introduced in California 2/18
A Growing Trend In Favor of Medical Marijuana Users in the Employment Context 10/17
Employers and advocates look for answers as more workers failing drug tests in Northern California 10/17
More Colorado businesses dropping pot from pre-employment drug tests
Study: Workplace Absences Decline Following Passage Of Medical Cannabis Laws
Study: Medical Marijuana Laws Associated With Greater Workforce Participation Among Older Americans
Drug testing: Tech firms adopt ‘don’t ask, don’t tell’ stance on cannabis use
Hiring Hurdle: Finding Workers Who Can Pass a Drug Test
Marijuana may be legal, but it can still get you fired
Marijuana reform is a work in progress despite Prop. 64 victory
Legal Marijuana Poses New Problems For Employee Drug Testing WSJ 11/22/16
California employers question drug testing policies in face of Proposition 64 Nor Cal Record
Marijuana, now legal in California, can still stop workers from getting a job LA Times
Sword of Damocles: Pot Partisans Fear Trump’s DOJ
Drug Tests Don’t Make Sense, So Why Are Employers Still Using Them?
NORML’s Model Workplace Policy for Cannabis
It’s Time For Employers To Rethink Marijuana, Drug-Testing Policies
