In California, adults can smoke (or otherwise use) marijuana without fear of jail time. However, taking leave can have a negative effect on job prospects. A new bill in the state Legislature would change that, five years after voters legalized recreational cannabis.

Because our Los Angeles marijuana lawyers have long been familiar with California’s employment laws, we recognize that this can be a great benefit not only to employees, but to cannabis businesses as well.

Assembly Bill 1256 would end the common practice of employers requiring their employees to undergo a marijuana test. It would also prohibit employers from using certain evidence of past marijuana use (urine tests, hair follicles, etc.) to discriminate against an employee or deny them employment. The event is sponsored by NORML California.

Urine and hair follicle tests are of particular interest to lawyers because they do not provide evidence of workplace impairment from the psychoactive compounds in marijuana. Similar problems arise with drivers suspected of intoxication; there is no breathalyzer for marijuana that can indicate a current offense, only past use – which may be an hour, two weeks or even months ago. Blood tests may be more accurate in determining recent use, but even the US Supreme Court has stated (albeit in a different context) that they are more invasive and should only be used as a last resort.

Just so we’re clear: Employers always have the right to insist that their employees do not work under the influence of alcohol. As the California Chamber of Commerce notes, the law allows employers to require unsuspicious drug tests as a condition of employment (although they may not conduct random drug tests on employees except in very narrow circumstances). However, depending on the industry and the employee’s position, there can clearly be liability if the employee fails to submit to a drug test. But because existing drug charges do not indicate whether someone is currently under the influence, their application seems overly broad. Some have compared employers’ use of urine tests to determine intoxication levels to finding a bottle of beer in someone’s trash and deciding whether or not to drink it.

The bill includes a provision that provides for legal action if an employee or potential employee is discriminated against because of his or her legal use of cannabis outside of work hours. As the NORML representative noted, employees are allowed to engage in many other legal activities outside of the workday, whether it be smoking, drinking, or shooting firearms.

Cannabis use should be treated the same way, the spokesman said.

The chances of AB 1256 being passed this year are uncertain, though proponents say they are still seeking stakeholder input, meaning it may not be seriously considered until 2022.

If approved in its current form, the proposal contains numerous exemptions, including for employers with a federal mandate to test GCRs and for individuals who would lose their driver’s licenses or monetary benefits if they fail the test. Persons working in the construction industry are also exempt.

The Los Angeles-based CANNABIS LAW group represents manufacturers, dispensaries, suppliers, patients, physicians and individuals facing marijuana-related charges. Call us at 714-937-2050.

Additional resources :

More urine tests: A California bill would end most workplace marijuana testing, 1. March 2021, by Andrew Schiller, Sacramento Bee

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