*Kenneth Wyatt II
I. INTRODUCTION
On May 26, 2022, Assembly Bill (AB) No. 2188 (Bill), passed the California State Assembly.[1] If signed into law, the Bill would take effect January 1, 2024.[2] As currently drafted, the Bill would amend California’s Fair Employment and Housing Act (FEHA),[3] which prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful employer practices.[4] Specifically, the Bill would extend to employees protections against termination or discrimination related to cannabis use.[5] AB 2188, states that the Bill would:
[M]ake it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace . . . or upon employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites[6] in their hair, blood, urine, or other bodily fluids.[7]
While the Bill would provide employee protections for out-of-work cannabis use, it would not permit employees to possess, use, or be impaired by cannabis while on the job.[8] There are certain applicants and employees that the Bill would not protect, specifically those in the building and construction trades and those in positions that require federal background investigations or clearances.[9] The Bill would not affect an employer’s rights pursuant to California’s Health and Safety Code nor an employer’s federal right or obligation to maintain a drug and alcohol free workplace.[10] While California began legalizing cannabis in 1996, the current statutory scheme is silent on the issue as it relates to employee protections.[11] If enacted, AB 2188 would be the first California law to provide employee protections to cannabis users.[12]
II. HISTORY
In 1996, California’s Compassionate Use Act (Act) went into effect, legalizing the use of medical marijuana.[13] However, the Act did not provide workplace protections for employees who used medical marijuana.[14] In Ross v. RagingWire Telecomms., Inc., an employee who was prescribed medical marijuana to treat chronic pain filed suit against a former employer. The suit alleged that the employer violated the FEHA by firing him after his pre-employment drug screening revealed his legal use of medical marijuana.[15] The Supreme Court of California held that because the Compassionate Use Act was silent on the subject of employment law, employers were not required to make accommodations for the use of marijuana under the FEHA.[16] Accordingly, the Court found that the employee had no cause of action under the FEHA.[17]
In 2016, voters approved California’s Proposition 64, which legalized cannabis for recreational use.[18] Endorsers of Proposition 64 rallied behind the idea that legalization of cannabis would correct the social injustices caused by decades of disparate enforcement of cannabis laws.[19] In recognition of past discrimination caused by federal and state drug policies, the initiative included social justice remedies such as dedicated funds to support job placement, mental health treatment, substance use disorder treatment, and legal services.[20] While Proposition 64 took substantial steps towards eradicating discrimination relating to the general enforcement of cannabis laws, by remaining silent on the issue of employment, it did not take any steps to provide protections from discriminatory workplace practices relating to off-duty use of cannabis.[21]
Despite the state’s legalization of both medical and recreational cannabis use, California’s cannabis regulations are still consistent with the holding in Ross.[22] AB 2188 would prohibit employment discrimination for legal, off-duty cannabis use, providing employees protections that do not exist under the current California statutory scheme.[23]
III. IMPLICATIONS
While the Bill has passed the California State Assembly, it has been met with opposition.[24] Opponents of AB 2188 argue that if passed, the Bill would limit or eliminate pre-employment testing for cannabis.[25] The California Chamber of Commerce (CalChamber) addressed these concerns in a July 27, 2022 opposition letter to California legislators.[26] CalChamber notes that by amending the FEHA, AB 2188 will give marijuana use the same protected status from workplace discrimination as race, religious creed, color, national origin, and other protected traits identified in the FEHA.[27] CalChamber further argues that this level of protection could create an influx of employer liability for legitimate disciplinary actions taken against employees.[28] However, if states are going to continue legalizing cannabis, they should implement statutes to protect the livelihood of individuals who use it.
The purpose of AB 2188 is not to allow or promote the use of cannabis in the workplace[29] but rather to push employers to use scientifically relevant drug testing methods that test for impairment instead of nonpsychoactive cannabis metabolites.[30] Because non-psychoactive cannabis metabolites remain in the body as the metabolized form of tetrahydrocannabinol (THC), they do not indicate impairment.[31] Their presence in the body indicates only that the tested individual has consumed cannabis in the past few weeks.[32] The Bill prohibits discrimination in hiring, termination, or any other condition of employment based on testing that assesses only for nonpsychoactive cannabis metabolites.[33] In doing so, the Bill forces employers to use more reliable testing methods, such as impairment tests, which show present impairment instead of recent cannabis consumption.[34] The Bill would not limit an employer’s ability to take legitimate disciplinary action as it relates to cannabis use.[35] Instead, the Bill ensures that employers are only taking disciplinary action when an employee is impaired at work.[36] Without these protections, employees may face workplace repercussions for their legal off-duty activities,[37] and the disproportionately negative effect cannabis legislation and criminalization has on minorities will continue.[38] A survey conducted by American Addiction Centers revealed African-American employees were more than twice as likely to receive disciplinary action following a drug test than their Caucasian counterparts.[39] Employers continuing to use scientifically inadequate methods of drug testing to detect employee cannabis use will only further promote inequity in the workplace.[40]
IV. CONCLUSION
To date, thirty-eight states have legalized cannabis for medical use[41] and nineteen states have legalized cannabis for recreational use.[42] However, only a handful of states have begun enacting statutes that provide protections for employees for their off-duty cannabis use.[43] Some states have addressed this issue by preventing discrimination based on off-hour cannabis use unless an employer has provided a written policy limiting it.[44] Others employ scientifically reliable drug testing methods in addition to a physical evaluation conducted by “Workplace Impairment Recognition Experts”[45] to detect or identify an employee’s use of, or impairment from, cannabis in the workplace.[46] Although no solution is perfect, as states continue to legalize cannabis use in any capacity, state legislatures need to take action to address the discriminatory effects legalization has in the workplace.
*Kenneth Wyatt II is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. He also serves as a law scholar for Professor Meyerson and a fellow in the school’s Legal Writing Center. Kenneth interned with Judge Grimm at the United States District Court for the District of Maryland this past summer and looks forward to being a summer associate at DLA Piper during the upcoming summer of 2023.
Image credits:
Office: Håkan Dahlström (licensed under the Creative Commons Attribution 2.0 Generic license)
Cannabis leaf: Oren neu dag (licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license)
[1] Cal. Leg., Bill History, (Aug. 25, 2022), https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=202120220AB2188
[2] Cal. Leg. 2188, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[3] Cal. Gov’t. Code § T. 2, D. 3, Pt. 2.8 (West 2022); see Cal. Gov’t. Code § 12900 (West 2022) (Allowing this section of the Code to be referred to as “California Fair Employment and Housing Act”).
[4] See generally Cal. Gov’t Code § T. 2, D. 3, Pt. 2.8 (West 2022); Cal. Leg. 2188, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[5] Cal. Leg. 2188, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[6] See Letter from Robert Moutrie, Policy Advocate, Cal. Chamber of Com., to Members, Senate Appropriations Comm. n. 4 (July 27, 2022) (on file with CalChamber).
[7] Cal. Leg. 2188, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[8] Id.
[9] Id.
[10] Id.
[11] See discussion infra Section II.
[12] See discussion infra Section II.
[13] Cal. Health & Safety Code § 11362.5 (West 1996) (the statute uses the word “marijuana” instead of the current statutory language of “cannabis”).
[14] See generally id.
[15] Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 202–03 (Cal. 2008).
[16] Id. at 207.
[17] Id. at 208.
[18] Cal. Health & Safety Code § 11362.1 (West 2016).
[19] Alexis Holmes, Zoning, Race, and Marijuana: The Unintended Consequences of Proposition 64, 23:3 Lewis & Clark L. Rev. 939, 943 (2019) (citing Endorsements, Yes On 64, http://yeson64.org/endorsements/ (last visited Feb. 26, 2019) (“Reforming our marijuana laws is an important civil rights issue. The current system is counterproductive, financially wasteful and racially biased—and the people of California want it to be fixed. This measure will ensure that California is not unjustly criminalizing responsible adults while ensuring that our children and our communities are protected and vital state and local services are funded.”).
[20] Cal. Rev. & Tax. Code § 34019(d) (West 2016), amended by Cal. Leg. 2925, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022) (allocating ten to fifty million dollars a year of cannabis tax revenue to “community-based nonprofit organizations to support job placement, mental health treatment, substance use disorder treatment, system navigation services, legal services to address barriers to reentry, and linkages to medical care for communities disproportionately affected by past federal and state drug policies”).
[21] See generally Cal. Health & Safety Code § 11362.1 (West 2016).
[22] See discussion supra Section II.
[23] Compare Cal. Leg. 2188, 2021-22 Gen. Assemb., Reg. Sess. (Cal. 2022) (providing employees with protections against employment discrimination based on off-duty and away from the workplace cannabis use), with Cal. Health & Safety Code § 11362.45 (West 2016) (legalizing recreational cannabis use but remaining silent on the issue of employment law, retaining the precedent set in Ross); see also Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 202–03 (Cal. 2008).
[24] See Letter from Robert Moutrie, Policy Advocate, Cal. Chamber of Com., to Members, Senate Appropriations Comm. (July 27, 2022) (on file with CalChamber).
[25] See id.
[26] Id.
[27] Id.
[28] Id.
[29] Cal. Leg. 2188, 2021–22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[30] Id.; see also Cal. Leg. 2188, supra note 5. Because nonpsychoactive cannabis metabolites are detectable without impairment, this testing method is outdated and can cause disciplinary actions to be taken against employees who have not violated state law or workplace policies. Id.
[31] See Cal. Leg. 2188, supra note 30 and accompanying text.
[32] Cal. Leg. 2188, 2021–22 Gen. Assemb., Reg. Sess. (Cal. 2022).
[33] Id.
[34] Id.
[35] See Letter from Robert Moutrie, Policy Advocate, Cal. Chamber of Com., to Members, Senate Appropriations Comm. (July 27, 2022) (on file with CalChamber).
[36] Cal. Leg. 2188, 2021–22 Gen. Assemb., Reg. Sess. (Cal. 2022); see also supra note 31 and accompanying text.
[37] See Ross, 174 P.3d at 202–03.
[38] Helen Dodson, Racial Differences Exist in Reports of Workplace Drug Testing, Yale: Yale News (Sept. 25, 2013), https://news.yale.edu/2013/09/25/racial-differences-exist-reports-workplace-drug-testing (highlighting survey findings that out of 70,000 survey responses, 63% of black workers reported being employed in a workplace that performs drug testing as opposed to only 46% of white workers); see also William C. Becker et al., Racial/ethnic Differences in Report of Drug Testing Practices at the Workplace Level in the U.S., 23 The Am. J. on Addictions 357 (2013).
[39] Am. Addiction Ctrs. Drugs at Work: Employee Reported Drug Testing in America, Detox (last updated Dec. 15, 2021) https://detox.net/uncover/drugs-at-work/.
[40] See supra notes 37–39 and accompanying text.
[41] National Conference of State Legislatures, State Medical Cannabis Laws, National Conference of State Legislatures (last visited Aug. 27, 2022).
[42] Id.
[43] See Conn. Gen. Stat. Ann. § 21a-422p (West 2022); Mont. Code Ann. § 39-2-313 (West 2022); Nev. Rev. Stat. Ann. § 613.333 (West 2021); N.J. Stat. Ann. § 24:6l-6.1 (West 2019); N.Y. Pub. Health Law § 3369 (McKinney 2018); 21 R.I. Gen. Laws Ann. § 21-28-.11-29 (West 2022).
[44] See Conn. Gen. Stat. Ann. § 21a-422p(b)(1) (West 2022).
[45] N.J. Stat. Ann. § 24:6l-6.1 (West 2019) (explaining the certification program required for full- or part-time employees to be recognized as Workplace Impairment Recognition Experts).
[46] N.J. Stat. Ann. § 24:6l-6.1 (West 2019) (Certified persons would be “trained to detect and identify an employee’s use of cannabis items or other intoxicating substances” to “assist in the investigation of workplace accidents.”).
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