California Law Will Protect Employees' Use of Marijuana Outside Work

Editor's Note: Gov. Gavin Newsom signed this bill into law on Sept. 18. 

​The California Legislature recently passed a bill prohibiting employers from penalizing workers for using marijuana during their off-work hours. 

Recreational use of marijuana has been legal in California since 2016. While off-duty use would be legally protected, the new bill does allow employers to fire or suspend workers for possessing, using or being impaired by marijuana while at work.

The law will take effect in January 2024.

For safety reasons, there are some exceptions to the rule on off-duty use. The bill "includes carveouts for the building and construction trades, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces," noted Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.. "Its provisions also exclude occupations that are required by federal or state laws to be tested for controlled substances. That may include, for example, truck drivers who are regulated by the U.S. Department of Transportation."

"I anticipate concern surrounding safety-sensitive positions," said Dalia Khatib, an attorney with CDF Labor Law in Sacramento, Calif. "This will also impact how seriously an employer should look at a person's conduct."

Difference Between THC and CBD

The bill will prevent employers from discriminating against an applicant or employee who fails a drug test that detects non-psychoactive cannabis metabolites in their urine, blood, hair or bodily fluids.

Marijuana products with THC (tetrahydrocannabinol) should not be confused with CBD (cannabidiol) products. THC is the component responsible for euphoria and intoxication. CBD is not intoxicating and does not lead to addiction, according to a 2019 advisory from the U.S. Surgeon General.

"Generally, employers are more concerned about THC products because such products can cause intoxication that may dangerously impair physical and mental abilities," Olmsted said. Under the California bill, "testing would be permitted to detect current impairment on the job by THC."

If an employer requires a worker to take a test, the employer should fully understand what the test is evaluating. Currently available tests don't accurately indicate a level of intoxication from marijuana, like they do for alcohol.

"CBD is not what most tests are looking for. Rather, tests that employers use are searching for evidence of THC in the employee's system," Khatib said.

Even with a positive test result, it could be challenging for employers to determine whether someone is impaired and when the substance might have been consumed. "Unless there are obvious signs, such as odor that suggests very recent use during work, which could still be hard to determine, employers will have difficulty determining the timing of use," Gellar said.

Recommended Practices

There are some recommended practices that employers could implement if the California bill becomes law.

"First, employers must ensure that they have adequate policies in place for drug testing. Without proper policies, employers may not even be able to test employees due to privacy concerns, with some exceptions," Khatib said.

"Second, the employer should focus on the person's conduct while they are performing their job duties to determine whether they have reasonable suspicion that someone is currently impaired," she said. "Assuming the employer has the right policies, their second challenge comes in subjecting the employee to the test, as well as making sure the right test is used."

Side Effects

THC can impair attention, judgment and coordination, according to the Mayo Clinic, a nonprofit academic medical center in Rochester, Minn. The signs of marijuana use include:

• Headaches.
• Dry mouth and dry, bloodshot eyes.
• Lightheadedness and dizziness.
• Drowsiness.
• Fatigue.
• Nausea and vomiting.
• Disorientation.
• Hallucinations.
• Increased heart rate.
• Increased appetite.
  

Marijuana remains illegal at the federal level. California law allows marijuana use for medical purposes.

Cannabis may be helpful in treating certain forms of epilepsy, nausea and vomiting associated with cancer chemotherapy, and loss of appetite and weight loss associated with HIV/AIDS, according to the National Center for Complimentary and Integrative Health. Some research suggests cannabis has modest benefits for chronic pain and multiple sclerosis symptoms.