The California Senate is considering a bill that would limit companies’ ability to make adverse employment decisions based on a person’s use of cannabis during work hours.
AB 2188 would require employers to use a test that proves a person was actually impaired by THC, the psychoactive component of cannabis. Many common drug tests detect the presence of THC metabolites which only indicate that a person has consumed cannabis at some point in the past and not that the person is impaired.
If passed, the measure could effectively overturn a 2008 state Supreme Court ruling that found the ballot initiative voters approved five years earlier to allow the medical use of cannabis did not address employment rights and only protected patients from prosecution.
AB 2188 would declare that it is generally unlawful for an employer to discriminate against an individual in hiring, firing, and any terms of employment based on cannabis use outside of work hours and away from the workplace.
The ban would not apply to employment decisions based on a “scientifically valid” pre-employment drug test using methods “that do not screen for non-psychoactive cannabis metabolites.”
The bill would also make it an illegal employment practice to base decisions on employer-required drug tests that find a person had non-psychoactive cannabis metabolites in their system.
The ban in AB 2188 would not apply to people who work in the construction industry or those who work in positions that require federal background checks.
The bill would add cannabis protections to the section of government code often referred to as the Fair Employment and Housing Act, effective January 1, 2024.
The United Food and Commercial Workers, Western State Council, said in support of the bill that routine urine and hair tests can detect THC metabolites several weeks after a person last used cannabis and serve no value in determining whether one was under the influence on the job.
The union said employers would still be allowed to ban workers from coming to work high or to confirm someone is under the influence by using tests that detect active THC in bodily fluids such as saliva or blood.
The California Chamber of Commerce said in opposition that cannabis use is not comparable to race, national origin and other characteristics that enjoy protected status and should not be included in the Fair Employment and Housing Act.
This bill is currently up for a third and final vote in the Senate. If passed, the Assembly would have to vote again to agree on changes made while the bill was in the Senate.
The Assembly voted 42-23 to pass the bill in May.
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