- New marijuana workplace protections in California. Two recently enacted California laws prevent employers from using hair or urine tests for marijuana and from asking job applicants about past cannabis use.
- Significance for remote employees is unclear. Legal experts recommend that employers follow laws in the states where employees reside, but court decisions about the application of state-specific laws to remote employees have been mixed.
- Stay up to date on legal and cultural developments. Businesses should regularly check to see if new state laws affect their drug policies and should consider workplace culture in relation to widespread support for marijuana legalization.
California has joined other states that are increasing legal protections for employees related to their off-the-clock marijuana use.
Assembly Bill 2188 prohibits employers from using hair or urine tests for marijuana as part of their decision to hire, fire or discipline employees, while Senate Bill 700 prohibits employers in California from asking job applicants about past cannabis use. Both laws became effective on Jan. 1.
The urine testing law excludes employees working in construction, as well as individuals working in federal jobs requiring drug testing, such as the transportation industry. Employers can still use mouth swab tests if they believe a worker is using marijuana at work or if an employee is in an accident while on the job. Swab tests identify very recent cannabis use, whereas weeks-old use can show up in hair and urine tests.
"Employers should know that there is no good evidence that urine testing for marijuana improves workplace safety,” said Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws) and writer of the new California law. “It’s an utter waste of money.”
Application for Remote Employees
It is not clear whether the new urine testing law would protect a California resident who works remotely for an employer whose headquarters is in a state where marijuana use is illegal, although Nancy Delogu, shareholder and co-chair of the Drugs and Alcohol Practice Group with Littler Mendelson P.C., indicated that likely would be the case.
“The default answer is that the law — the jurisdiction in which the individual works — is usually the one that I tell the employer to apply,” she said. “An out-of-state employer with one or more employees in California should be mindful of the law in California.”
Gieringer noted that the issue of whether California’s new law applies to remote workers may go to court. When that has happened with other state laws in the past, court decisions have been mixed.
The best move for workers, Delogu said, is to ask their employers how the law would apply to existing workplace policies. For their part, employers should clearly and proactively communicate any changes to employees. “Don’t wait to be asked,” Delogu said.
Cheryl Brown Merriwether, executive director of the International Center for Addiction and Recovery Education, agreed that it’s important for the lines of communication between employees and employers to be open.
“We’ve got to break the silence in the workplace,” she said. “We’ve got to create psychological safety in the workplace so that people can ask questions and find the answers to the questions they have about these substances.”
Steps for Employers
Keeping up with the latest state and federal regulations is a must, as failure to do so can open employers up to litigation from employees who were let go or individuals who were removed from the candidate pool due to their consumption of marijuana, said Morgan Fox, political director at NORML.
Beyond that, employers should consider that strict workplace policies related to marijuana use may be detrimental when it comes to talent recruitment.
“Employers should start thinking about the fact that preventing your employees from consuming cannabis, or eliminating cannabis consumers from the potential pool of employees, not only does a disservice to cannabis consumers but also does a disservice to employers,” Fox said. “It’s severely limiting the talent pool for something that the vast majority of people think should be legal.”
Having strict policies may also create retention challenges. In the U.S., where marijuana consumption is still illegal at the federal level, more than 70% of those using illicit drugs are employed. That makes it difficult for many human resources professionals to find employees who can pass drug tests, Merriwether said. As a result, some employers are deciding on their own to no longer drug-test employees if their industry doesn’t require it.
Another thing to consider is that as the legal landscape of marijuana use continues to change, so does public opinion surrounding it. Keeping tabs on changes in workplace culture is just as important as monitoring legal developments, Merriwether said.
Future of Cannabis Workplace Laws
More states are penning laws similar to California’s that would protect off-duty marijuana use, although many carve out exceptions for “safety-sensitive positions.” There has also been movement on the federal level. The U.S. Department of Transportation last year approved oral fluid drug testing, preferred by advocates because it detects very recent use, and that change is expected to take place this year once there are enough approved labs to sustain the testing.
Additionally, the Cannabis Users Restoration of Eligibility (CURE) Act (H.R. 5040), a bill that recently was approved in committee by a vote of 30-14, may soon be brought to the House floor. The act would protect federal employees and applicants, as well as those trying to get security clearance, from being discriminated against for past marijuana use.
“The fact that such a bill was able to pass overwhelmingly in a Republican-controlled committee represents a real tone shift when it comes to employment issues surrounding cannabis at the federal level,” Fox said. “That, combined with the progress that states have been making, should really make employers take notice.”
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