Elizabeth Hamill September 21, 2o22
Governor Gavin Newsom of California signed a law on Sunday that prohibits employers from terminating employees for using marijuana away from work. The law has banned the use of tests that measure whether cannabis has been consumed recently, usually via hair or urine samples, but do not test for current impairment. There are exemptions to the law for employees in construction trades or those who need federal background clearance.
The bill was part of a larger package of cannabis-related bills, meant to expand the equity of California’s marijuana policy. This makes California the seventh state to officially protect workers who use cannabis in their off time. Similar laws are already in place in Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island. Other states, including Pennsylvania, have some statutory language that partially prevents employment discrimination specifically for medical marijuana patients.
Last year, the Pennsylvania Superior Court decided that employees may sue employers for wrongful termination that resulted from the employee’s status as a certified medical marijuana patient. In Arizona, Delaware, and Minnesota, employees may not be disciplined for testing positive for cannabis if such is not related to the use, possession or impairment at work. In New York, drug tests may not be used to determine impairment from marijuana and in New Jersey even police are allowed to use cannabis off duty.
Pennsylvania, Arizona, Delaware, and Minnesota are not alone in wrestling these issues. Now that much of the country has legalized some form of cannabis consumption, employee protections are a hotly debated topic in many states. Most states still leave decisions about testing for THC up to employers, even where cannabis use is legal, and often even in the case of medical marijuana patients. Many employers have decided to amend their own drug testing policies, with more employers, such as Amazon, choosing to forgo testing for cannabis use at all. Others choose to make exceptions to their testing policies for those with medical marijuana patient certifications.
Still, in most of the country it is legal to terminate an employee for off-the-clock use of cannabis. In effect, this means that legalization does not equal fair access for much of the population. Governor Newsom referenced this in a statement, saying, “For too many Californians, the promise of cannabis legalization remains out of reach. These measures build on the important strides our state has made toward this goal, but much work remains to build an equitable, safe and sustainable legal cannabis industry. I look forward to partnering with the Legislature and policymakers to fully realize cannabis legalization in communities across California.”
It seems likely that more states will follow California’s lead and codify protections for cannabis consuming employees. But until then, it may be in the best interest of both employers and employees to consider whether the current system is serving us well. As cultural attitudes toward cannabis continue to expand, and employers struggle more than ever to hire and retain workers, there may be no better time to let go of our old methods of cannabis testing and employment screening. A recent study from The University of Cambridge, published in a recent issue of The International Journal of Neuropsychopharmacology, has even found that regular cannabis users have no impairment in motivation or job completion compared to non-users. It seems shortsighted, then, for employers to intentionally exclude such a large group from their hiring pool. Further, employment screening that does not specifically protect medical marijuana patients could result in deepening economic inequality among disabled and chronically ill people. With all of these issues intersecting, it’s no wonder California has taken steps to regulate employee protections around cannabis use.