AB 2188 will prevent employers from using bodily fluids testing to discriminate against employees who consume cannabis when they are not at work, starting on 1/1/2024.
UPDATE 9/18/22 – Gov. Newsom Signs Bill to Protect Employment Rights of Cannabis Consumers, Other Reform Measures
9/1/22 – California Legislature Passes Bill to Protect Rights of Workers Who Use Cannabis Off the Job
2/15/22 – Assembly Member Bill Quirk (D-Hayward) has introduced legislation, AB 2188, that would end discrimination based on cannabis metabolites testing by California employers. The bill is sponsored by California NORML, which advocates for the rights of California cannabis consumers. The bill has passed through two Assembly committees and also prevailed on the Assembly floor.
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. An online survey being conducted by Cal NORML is showing that that 33% of respondents have been denied employment due to testing positive for marijuana, and 60% have stopped using marijuana because of drug testing by their employer or doctor.
Cannabis metabolites are the non-psychoactive substances that can be detected in a person’s bodily fluids for up to several weeks after they have consumed cannabis. Testing positive for cannabis metabolites has no scientific value in establishing that a person is impaired or “high.” When employers use cannabis metabolites tests to discriminate against employees or prospective employees, they are most likely discriminating against people who are not impaired at work and who consumed cannabis when they were not at work.
Six other states (NV, NY, NJ, CT, MT & RI) have passed laws in recent years protecting recreational cannabis users’ employment rights, and 21 states protect those rights for medical marijuana users. Philadelphia, Washington DC and Atlanta also protect the rights of workers in their cities who use cannabis. “It’s high time California protected its workers’ rights also,” said Dale Gieringer, director of California NORML.
As in other states, the proposed California bill has exemptions for employers who are required to follow federal drug-testing mandates.
Assembly Member Quirk’s bill does not bar employers from requiring that employees not be impaired on the job. It does not prohibit other forms of testing, such as performance-based impairment testing or testing for THC—the active ingredient in marijuana—which may establish that a person has consumed cannabis in the past several hours. The bill does not prohibit employers from taking action against employees or prospective employees who test positive for THC or who fail a performance-based impairment test.
Studies have shown that off-the-job cannabis use is not positively associated with elevated rates of occupational accidents or injuries, and that liberalized marijuana laws are associated greater labor participation, lower rates of absenteeism, declines in workers’ compensation filings, and higher wages.
Asm. Quirk introduced AB1256 with similar language last year as a two-year bill, in order to begin the process of reaching out to stakeholders and supporters. The cities of Oakland and San Francisco have passed resolutions last year in favor of the measure.