UPDATE 2020: Assemblyman Rob Bonta introduced AB 2355, a bill sponsored by Cal NORML to end employment discrimination against Californians using medical cannabis. AB 2355 would make it an unlawful employment practice for an employer or other entity to refuse to hire or employ a person, or to discriminate against an employee, because of the employee’s use of medical cannabis. The bill would grant people who use medical cannabis while employed the same rights to reasonable accommodation and the associated interactive process as are provided to workers prescribed other legal drugs. Also see: New Bill Seeks to Protect Pot Patients Employment Cannabis Now, 3/2020
Unfortunately, COVID-19 usurped much of the legislative process in 2020 and AB 2355 did not advance. We are working towards re-introducing an employment rights for cannabis consumers bill for 2021.
Cal NORML testified at a hearing on cannabis and employment rights in the CA Senate Labor Committee on November 9, 2019.
As we feared, one of the most frequently asked questions we have been getting since Prop. 64 passed legalizing adult marijuana use in California is, “Am I now protected against drug testing on my job?”
Sadly, the answer is most often, “No.” Prop. 64 specifically allows employers to continue to discriminate against their workers, even when their marijuana use is during nonworking hours. In California, 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.
Nineteen 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
• 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
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.
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.