Assembly Passes Bill Preventing Companies From Punishing Workers Who Test Positive For Marijuana Off-Hours

A bill to halt companies from punishing workers who test positive for off the clock marijuana use was approved by the Assembly on Tuesday, sending the bill to Governor Gavin Newsom’s desk.

Assembly Bill 2188, authored by Assemblyman Bill Quirk (D-Hayward), would make it illegal for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace. Exceptions would include preemployment drug screening tests, as well as employees who require a federal background investigation or clearance and those in jobs with high safety standards such as building and construction trades. Other state and federal laws concerning testing as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract would also not be applicable.

If passed, the bill would go into effect on January 1, 2024.

Assemblyman Quirk wrote AB 2188 due to current drug testing going after Cannabis legalization to find employees who may be impaired, with testing often having no correlation to being impaired on the job. He also argued that alternative tests, which better spot impairment, should be used by employers. Quirk also noted on the Assembly floor on Tuesday that this bill would not let employees come into work high as a result.

“Nothing in this bill would allow someone to come to work high,” reiterated Quirk.

California NORML Director Dale Gierringer noted earlier this year that “This whole piss-testing regime is really the result of government fraud in the first place. There was never any good evidence that piss testing, in particular looking for metabolites, had anything to do with public safety.”

“There’s never been an FDA study to show that that’s true. I mean, if I had a new drug, or medical device, that I said, ‘If you give this to your employees, they will have fewer accidents, and they’ll be more reliable and better employees.’ If I had such a medical device, or drug, the FDA would require me to do doubleblind controlled clinical studies proving that that’s the case.”

Questions over AB 2188

While approved by many marijuana use organizations and other groups, many business groups have remained vehemently opposed to AB 2188 because of how the law could be interpreted for testing and workers being under the influence, but also how it could protect marijuana users against discrimination in the workplace on the same level as race or gender.

“Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin,” said the California Chamber of Commerce earlier this year.

Marijuana law consultant Perry Hampton added in a Globe interview on Tuesday that “This is just a quick step away from allowing more and more impairments at work. We need to treat it like drinking at work. Marijuana is legal now. We need to accept that. But we can’t make it a special case either. You want marijuana to be more normalized? Fine, then allow these tests to happen. Don’t just say ‘Well this is special’.”

While there had been some close votes this year on AB2188, including an initial 42-23 with 13 abstentions Assembly vote before amendments in May, more recent votes have brought many more, including some Republicans, into voting for the bill, especially after assurances that workers would not be going into work under the influence.

Following the passage in the Assembly 41-15 on Tuesday, Governor Newsom is due to sign or veto the legislation soon. Should it be passed, California would be the seventh state with a such a law in the books, joining Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island.