Employment Protections for Marijuana Users

California Senate Considering Bill That Would Provide Employment Protections for Marijuana Users

California made it legal to use marijuana recreationally starting in 2016. Unfortunately for workers, there were no regulations covering this law’s effect on employment. Because of the lack of regulations, employees who chose to use marijuana worried their employers could discipline or terminate them for using marijuana. Now, the Senate will consider Bill AB 2188, which would provide protections for employees who choose to use marijuana when they are off duty.

AB 2188 would prevent employers from disciplining employees for cannabis use when off duty. This Bill would also amend California’s Fair Employment and Housing Act (DFEH) to forbid several types of employment discrimination. Furthermore, it makes it illegal to discriminate against individuals who use cannabis in hiring, firing, or for any other condition or term of employment. Employees who believe their employer has violated this law could file charges with the DFEH and a civil suit.

However, this Bill does not take away an employer’s right to keep a drug-free workplace. If you choose to use cannabis, you must remember that your employer can prohibit you from being under the influence of cannabis during work or from bringing cannabis into the workplace.

Your employer could still require drug testing, though the requirements may change to accommodate AB 2188. For example, one change prevents employers from disciplining you based on marijuana metabolites. Instead, they can only suspect that you are working while impaired and conduct saliva-based testing. Saliva-based testing is considered more effective for detecting whether a person is under the influence of marijuana. However, some people have concerns about the reliability of this type of testing.

There are exceptions in the Bill for building or construction trades, federal licensees required to maintain a drug-free workplace, and recipients of federal funding. Also, the law would not apply to occupations in which employers must test employees for the use of controlled substances by federal or state law.

Additionally, your employer or potential employer can still make employment decisions based on scientifically supported drug test results. However, the test cannot screen for psychoactive cannabis metabolites.

The California Assembly has already passed AB 2188 by a 42-23 vote. However, it must still pass through the Senate, and the Governor must sign it. If passed, it will be easier for employees to understand their rights regarding off-duty cannabis use.

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