The legislation is part of a broader nationwide shift in drug policy that includes creating protections for marijuana users that are not included in the Wave of cannabis legalization laws approved in recent years.
“It’s a bigger trend toward going beyond just legalizing marijuana, stopping arrests and stopping people being thrown in jail for their use,” said Robert Mikos, an expert in drug law at Vanderbilt University. “It provides the same level of rights and legal protections for marijuana users as it does for users of prescription drugs, alcohol and tobacco.”
Mikos said there’s no single reason officials have been slow to get employment protections on record because states have changed cannabis laws. He said some may have been wary of workplace safety concerns related to marijuana use. Others may be concerned about upsetting employers and pushing them against legalization when it was up for debate.
Mikos said it could have just been an oversight.
“There are a lot of laws that actually protect people from using other drugs or engaging in legal activities outside of work,” he said. So lawmakers may have thought that other laws would protect medical or recreational marijuana users. In many places, that has been proven wrong.”
Now, he said, “They’re filling in the gaps and making clear that the same laws that protect weekend bourbon drinkers protect people who use marijuana on the weekend.”
The California bill, sponsored by Assemblyman Bill Quirk, a Bay Area Democrat, would amend the state’s anti-discrimination and employment laws. According to the text, employers will in most cases be prohibited from penalizing workers “based on a person’s use of cannabis away from work and away from the workplace.”
The bill notes that common marijuana tests — those that use urine or hair samples to indicate whether someone has recently used the pot — only detect the presence of cannabis particles and have nothing to do with impairment in function. Legislation would make these tests irrelevant for many employers. But it still allows them to penalize workers who fail saliva tests that reveal if a person is high on the job. Employers can still prevent workers from possessing cannabis at work.
Not all businesses and employees will be subject to restrictions. The bill contains exceptions for federal contractors, companies that receive federal funding, and employees hired for jobs that require a federal background investigation. Possession, sale, and cultivation of marijuana remain criminal offenses under federal law.
Similar laws have already been passed in Connecticut, Montana, Nevada, New Jersey, New York and Rhode Island, according to marijuana reform group NORML. More than a dozen other states offer such protections for medical marijuana users.
Mikos said adding California, the country’s most populous state, to the list would “at least add momentum to others.”
“It gives other countries a short, well-written law that they can copy into their law books,” he said.
A representative for California Governor Gavin Newsom (D) did not immediately respond to a request for comment Thursday. Newsom has been a prominent advocate for changing marijuana laws since his days as lieutenant governor. He was a driving force behind Proposition 64, the 2016 voter initiative to legalize cannabis in the state. This year, he cut the cannabis tax in an effort to support farmers facing rising costs.
The legislation has some strong critics. The California Chamber of Commerce called it a “job killer” when lawmakers were debating it earlier this year. The business advocacy group said in a statement that it would threaten workplace safety by making marijuana use a “protected category” under state law.
“The proposal also effectively prohibits pre-employment drug testing, which is detrimental to employers’ ability to keep their workplace safe and drug-free,” the chamber said.
But the bill, known as AB 2188, garnered support from labor unions, including the Western State Board of Trade and Food Workers. In a statement this week regarding the law’s passage, union members criticized the tests many employers use, calling them unreliable and ineffective in making workplaces safer.
“Not only will AB 2188 have a significant impact on protecting workers from discrimination based on their past use of cannabis, but it will begin to turn the tide toward more accurate, up-to-date cannabis testing to detect recent use,” said Jenny Phan. , a member of UFCW Local 324 and an employee of the Long Beach cannabis dispensary.
“This bill addresses flaws in employers’ use of cannabis testing methods, such as urine tests, to discriminate against workers’ employment and rights,” she said in a statement. “The use of oral swab tests is not only more accurate in detecting recent use, but it is a step toward ending the stigma caused by cannabis use.”