Employment Rights for Marijuana Users a Priority for Cal NORML

 


TAKE OUR 2-MINUTE SURVEY OF CANNABIS CONSUMERS ON EMPLOYMENT
AND MEDICAL DISCRIMINATION IN CALIFORNIA


2/20/2021 – Asm. Bill Quirk (D-Hayward) has introduced an employment discrimination bill, AB 1256, 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.

UPDATES 2021: On June 15, 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.

On June 17, 2021, the 50th Anniversary of the War on Drugs, Connecticut passed a law legalizing adult-use marijuana, with provisions for employment rights. It states:

– A drug test of an individual that yields a positive result solely for 11-nor-9-carboxy-delta-9 tetrahydrocannabinol shall not be construed, without other evidence, as proof that such individual is under the influence of or impaired by cannabis.
– A drug test of a prospective or existing employee, other than a prospective or existing exempted employee, that yields a positive result solely for 11-nor-9-carboxy-delta 9-tetrahydrocannabinol, shall not form the sole basis for refusal to employ or to continue to employ or otherwise penalize such prospective or existing employee.
– No employer shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because such employee does or does not smoke, vape, aerosolize or otherwise use cannabis products outside of the workplace (while allowing for workplace possession for medical marijuana users).

In May 2021, the state of Montana enacted a law defining cannabis as a “lawful product,” meaning employers cannot reject an applicant or take adverse action against an employee solely because they use or test positive for marijuana (absent demonstrable evidence of marijuana-induced impairment while in the workplace).

In April 2021, the city council of Philadelphia voted 15-1 to pass an ordinance banning discrimination due to drug testing for marijuana for certain positions in the city. The ordinance will take effect on January 1, 2022.

On March 31, 2021, New York Governor Andrew Cuomo signed the “Marijuana Regulation and Taxation Act” into law, specifically protecting an employee from job discrimination based on the “legal use of consumable products, including cannabis in accordance with state law.”

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.

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:

Arizona
Arkansas
Connecticut
Delaware
Illinois
Maine*
Maryland
Massachusetts
Minnesota
Montana*
Nevada*
New Jersey*
New Mexico
New York
Oklahoma
Pennsylvania
Rhode Island
South Dakota
Vermont
Virginia
West Virginia

*The cities of  Atlanta, New York City, Philadelphia, Washington DC, Rochester NY, Richmond VA, have enacted laws protecting employment rights of recreational marijuana users, as have the states of Montana, Nevada, New York, New Jersey and Connecticut. (*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.)

COURT RULINGS / FEDERAL BILLS

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:

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.

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

Marijuana and the workplace

 

NEWS:

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

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