California Lawmakers Pass Bill Protecting Workers’ Off-Duty Cannabis Use

California lawmakers on Tuesday gave final approval to a bill to protect employees who use marijuana off the job. If approved by the governor, the legislation would make California the seventh state in the nation to pass employment protections for workers’ off-duty cannabis use.

The measure, Assembly Bill 2188 (AB-2188), would “make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person” solely because of marijuana use while off the job, according to an abstract of the legislation. But Assemblymember Bill Quirk, the sponsor of the legislation, noted that AB-2188 does not allow people to work while impaired by cannabis.

“Nothing in this bill would allow someone to come (to work) high,” said Quirk.

Under the legislation, employers would be prohibited from taking action against an employee for failing a urine or hair screening for cannabis metabolites. Tests that measure or detect the presence of cannabis metabolites only show that the person ingested cannabis at some point, potentially weeks before the sample is taken, and are not an indicator of present impairment.

The legislation is supported by cannabis advocates and labor groups including United Food and Commercial Workers (UFCW), Service Employees International Union (SEIU), California Nurses Association, CA Board of Registered Nursing, and UDW/AFSCME Local 3930. Supporters of the bill argue that employees should not be punished for using marijuana while off the clock.

“Using outdated cannabis tests only causes employees to feel unsafe and harassed at work, it does not increase workplace safety,” said Matt Bell, secretary-treasurer for the United Food and Commercial Workers Local 324.

The legislation includes several exceptions designed to protect employers. The bill does not apply to workers in the “building and construction trades” or to employees or applicants for positions that require a background check or security clearance under federal regulations. Additionally, the legislation does not preempt any federal or state statutes that require testing for controlled substances and would not apply to employment decisions based on “scientifically valid” pre-employment drug test methods “that do not screen for psychoactive cannabis metabolites.”

California Pioneered Cannabis Legalization

California was the first state to legalize the medicinal use of cannabis in 1996, and 20 years later voters legalized the recreational use of marijuana by adults. The National Organization for the Reform of Marijuana Laws (NORML) notes that six states (Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island) have enacted laws to protect workers’ use of recreational cannabis off the job and 21 states offer worker protections for medical marijuana patients.

“Cannabis is legal in California, and workers have a right to engage in legal activity while away from the job. Yet countless workers and job applicants are losing job opportunities or being fired because they test positive for legal, off-the-job use of marijuana on account of indiscriminate urine and hair metabolite tests,” said Dale Gieringer, the director of NORML’s California chapter. “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.”

The California Chamber of Commerce is opposed to the legislation because it would “create a protected status for marijuana use” in state law that bans discrimination in the workplace.

“Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin,” the business association wrote in a letter to state lawmakers.

AB-2188 was first passed by the California State Assembly in May, followed by the approval with amendments by the state Senate on Monday. On Tuesday, the Assembly approved the Senate version of the measure. The bill now heads to the desk of Democratic Governor Gavin Newsom, who has until the end of September to decide its fate. If Newsom signs the bill into law, it will go into effect on January 1, 2024.