Employees Ability to Use Marijuana Off the Clock to be Protected Under New CA Bill
Good news for California cannabis enthusiasts. A new bill was recently passed by the State Assembly by a two thirds majority. This bill could finally see your rights to use cannabis on your own time protected by law.
The new bill would amend the Fair Employment and Housing Act by making it unlawful for an employer or employment agency to discriminate against employees or applicants based on their personal use of marijuana. Violation of this bill would entitle the employee to file a DFEH charge and a civil lawsuit with the same remedies as any other California discrimination claim.
Personal Use Not Related To Work
Under the new bill, staff may use cannabis outside of working hours, but may not possess or use it during work hours, or arrive at work while still under the influence. This approach mirrors the State’s approach to alcohol consumption for employees when interacting socially outside of work.
The focus of the bill is mainly to change the way employers will test for cannabis use, shifting from older, simple tests that indicate whether THC is present or not, to recent-use tests that can be administered much like a standard alcohol test.
Reliable Testing Methods
Since the cannabis legalization in 2016, this has been a highly debated topic, as testing for marijuana use in general is easy, but there are not many reliable ways to test if someone is currently under the influence.
A conventional THC test by hair, urine, or saliva, can give a simple positive or negative result, but THC can be detected by these methods even months after use so there’s no way to tell when it was taken.
New tests are needed to determine if someone is currently high, or if they have been within the last few hours.
The most likely test to become standard is the Hound breathalyzer. It can detect THC use in the last three to four hours which aligns with the timeframe of impairment, according to Hound Labs.
The test functions much like a standard alcohol breath test, and it could be implemented in the workplace using the same methods.
Their goal is to replace the standard pre-employment testing with recent-use testing, which would be a significant victory for cannabis rights in CA.
Current consensus amongst cannabis users is that this is long overdue, as what employees do on their own time is nobody’s business but the employee, as is the case with those who drink alcohol.
Here is a video from Hound Labs on their new breath tests.
Of course, the bill is not without limitations. Anyone in safety critical work environments, such as construction, law enforcement, industrial workers, etc. are not protected under the bill.
Jobs requiring a federal government background check or a security clearance are also exempt, and it would also not preempt any state or federal laws that require testing for controlled substances.
The bill is currently with the California Senate, and if it is passed and signed into law by the Governor, it would allow a year for implementation and come into effect in January 2024.
This will be a big step forward for the marijuana community, bringing privacy and protection from employers while still maintaining a safe and sober workplace. Washington D.C. has recently passed a similar bill, hopefully indicating a new direction for the country.
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