New Year Brings Employment Protections for California Cannabis Users

December 28, 2023 · High Times

California workers who use cannabis will gain new employment protections under two laws that go into effect beginning on January 1. Under legislation passed by the California legislature last year, employers will be barred from discriminating against workers who test positive for cannabis in some drug screenings, while a separate measure passed in 2023 prohibits employers from asking employees or job candidates about their off-duty use of marijuana.

Under Assembly Bill 2188 (AB 2188), which was signed into law by California Governor Gavin Newsom in 2022, employers will no longer be able to fire or discipline employees who test positive for cannabis in a urine or hair test. The bill also applies to job applicants, who cannot be denied employment based on the results of such drug screenings. The law does not prevent employers from using other drug tests for cannabis use, including blood or saliva tests. 

The new law has exceptions for employees in the building and construction industry. The measure also exempts workers and job applicants for positions that require a federal background check or security clearance.

Newsom signed the bill last year in conjunction with other cannabis-related legislation. At the time, the governor said in a press release that “rigid bureaucracy and federal prohibition continue to pose challenges to the industry and consumers.”

Many Drug Tests Are Unreliable

Cannabis policy reform advocates have long been critical of drug screenings that rely on hair or urine samples because they can return positive results weeks after the person being tested used marijuana and do not indicate impairment at the time the sample was taken. Dale Gieringer, director of the California chapter of the National Organization for the Reform of Marijuana Laws (CalNORML), said that the legislation going into effect on January 1 improves the employment conditions for California’s workforce.

“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,” Gieringer said in a statement from the cannabis policy reform advocacy group. “These new laws will end that practice without impacting workplace safety. Numerous studies have found that workers who test positive for cannabis metabolites have no higher risk of workplace accidents.”

A separate piece of legislation passed earlier this year to clarify AB 2188, Senate Bill 700 (SB 700), amends California’s Fair Employment and Housing Act to ban employers from asking job applicants about their use of cannabis while off the job. Employers are still permitted to ask job candidates about their criminal history, but they may not use information about their prior use of cannabis that is related to their criminal history unless otherwise permitted by law.

Jessica Hanson, CEO of cannabis seed company Symple Seeds, said that the new legislation is a positive step for both workers and the regulated cannabis industry. 

“These new laws represent a significant victory for California’s workers and the legal cannabis industry,” Hanson wrote in an email to High Times on Wednesday. “By limiting employer inquiries about off-duty cannabis use and banning outdated testing methods, California sends a clear message: responsible adults should not be penalized for exercising their legal rights outside the workplace. This is a welcome step towards building a fairer and more mature cannabis industry.”

The National Federation of Independent Business has characterized the new laws as one of the top five “compliance headaches” for small business owners in California for 2024. The California Chamber of Commerce expressed opposition to AB 2188 in its original form, saying the bill was a “job killer,” according to a report from public policy news site CalMatters. The business group later dropped its opposition to the legislation after lawmakers revised the bill.

Both AB 2188 and SB 700 go into effect on January 1. (Full Story)

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