2/20/2021 – Asm. Bill Quirk (D-Hayward) has introduced an employment discrimination bill, AB 1256, with language that will be amended after further discussion with stakeholders. Our intent is to end employment discrimination based on testing for non-psychoactive cannabis metabolites in urine, hair or bodily fluids for both recreational and medical cannabis users, while allowing employers to maintain a safe workplace by disallowing cannabis use or intoxication on the job. Stay tuned and join Cal NORML’s email alert list for updates.
UPDATE 2021: On February 22, 2021 Gov. Phil Murphy of New Jersey signed a law legalizing marijuana for recreational use and protecting employment rights of recreational users. The provisions governing the employment relationship are not operative until a commission adopts its initial rules and regulations. Read more.
The mayor of Atlanta has issued an executive order ending drug testing for non-safety-sensitive positions in the city.
“With equity being a core principle of the Administration’s policies and agenda, this Order is designed to address systemic discrimination against communities of color which are disproportionately affected by underlying health conditions,” Mayor Bottoms said in a press release. “The current pre-employment testing requirements for those seeking jobs, not related to safety and security, are outdated and costly barriers to onboarding new talent in the City of Atlanta,” said Mayor Bottoms. “As we continue to reform our employment process, creating a positive employee experience is key to attracting and maintaining a top-tier workforce, while ensuring opportunities are accessible to all.”
The Order also grants the Commissioner of the Department of Human Resources the authority to administratively establish requirements for pre-employment physical examinations and drug testing for safety sensitive positions and may designate certain employment classifications which affect safety and /or security as safety sensitive positions.
Atlanta joins New York City, Washington DC, Rochester NY, and Richmond, VA, all of which have enacted similar policies, along with the states of Nevada and New Jersey. Maine voters passed a law protecting the employment rights of recreational users in 2016, but the legislature repealed it and assigned a commission to study the issue.
In California, employers continue to discriminate against their workers, even when their marijuana use is during nonworking hours. Even medical marijuana patients are not protected against employment discrimination. 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.
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.
Twenty-one states plus Washington, DC have made it illegal for an employer to not hire or to discriminate against either a job applicant or employee who uses medical marijuana, under certain conditions. Some also protect tenants’ rights, parental rights, and others.
Those states are:
• New Jersey*
• New Mexico
• New York
• Rhode Island
• South Dakota
• West Virginia
The rights of Massachusetts medical patients were recently upheld in court, as were those of patients in Rhode Island and Connecticut. Read more.
In 2019, two more court decisions upheld employee rights:
- 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.
- Arizona: Whitmire v. Walmart Stores Incorporated – An employee may not be terminated solely for testing positive for carboxy-THC
*Maine’s 2016 voter approved initiative protected recreational marijuana users on the job, unless it can be proved that there is a safety concern. However, the legislature repealed the provision and instead assigned the topic to a commission.
Washington, DC City Council approved workplace protections for medical cannabis patients on 9/5/2019; Congress must approve the measure before it becomes law. DC’s mayor issued an order protecting employees summarized here. Read the full DC mayorial order.
In 2021, New Jersey‘s governor signed a law protecting the workplace rights of recreational cannabis users.
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.
Cal NORML is making it a priority to advance legislation to protect workers’ rights in California. 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. We hope to sponsor a bill that will truly make marijuana legal for all adults and educate unions and employers about the needlessness of drug testing.
Join the Campaign! We will need you to lobby your elected officials to introduce and pass a bill.
You can also support our efforts by joining Cal NORML.
Cannabis in the Workplace Comparative Law Review – a state-by-state analysis by Wilson Elser
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
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.