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California passes bill to protect workers who smoke pot off the clock

By Melissa Hernandez, Los Angeles Times
Published: September 5, 2022, 6:02am

California could soon become the seventh state in the United States to protect its pot-smoking employees.

The California Senate passed Assembly Bill 2188 on Tuesday that would amend the state’s anti-discrimination laws and the Fair Employment and Housing Act to prevent companies from punishing employees who smoke marijuana outside work and may fail drug screenings because they tested positive for the drug. These types of tests are usually done as pre-employment drug screenings, and can determine if a person has smoked in recent days, or even weeks. The bill would not apply to tests that determine whether an employee is currently high.

The bill now heads to Gov. Gavin Newsom’s desk, and he has until the end of September to decide whether to sign it into law. If signed, the law would take effect Jan. 1, 2024.

Currently, six other states — Connecticut, Montana, Nevada, New Jersey, New York and Rhode Island — have enacted laws that protect employees who smoke marijuana at home and while off the clock.

Lab drug screenings typically take a sample of a person’s saliva, urine or hair follicle, and are screened for THC, the main psychoactive metabolite in weed. These metabolites can stay in a person’s system for days — or even weeks, for heavy smokers — meaning people can test positive on a test even if they’re not high when testing, according to medical experts.

The new legislation would prohibit employers from punishing or discriminating against employees who fail these types of tests. However, it does not prevent them from using other types of tests on employees, such as saliva tests, to determine if they’re high in the moment. Certain exclusions would also still apply, such as employees who work in building and construction trades, federal contractors and employees who receive federal funding, as well as federal licensees who are required to maintain drug-free workplaces.

Assemblymember Bill Quirk (D-Hayward), who authored the bill, emphasized that the bill would not allow employees to show up to work under the influence.

Despite being the first state to legalize medicinal weed in 1996 and one of the first states to legalize recreational weed in 2016, California has up until now done little to protect workers who smoke marijuana off the clock and at their leisure.

In an open letter to lawmakers, the California Chamber of Commerce said it opposed the legislation, calling the bill a “ job killer “ because it would “create an unprecedented, protected class for marijuana users and undermines employers’ ability to provide a safe and drug-free workplace” under California law.

“Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin,” the letter states.

But labor unions, such as the United Food and Commercial Workers Local 324, argue that employees should not be punished for what they do outside of their job — especially if it’s legal.

“Using outdated cannabis tests only causes employees to feel unsafe and harassed at work, it does not increase workplace safety,” said Matt Bell, secretary-treasurer for the UFCW 324.