Drug Testing in California: New Bill to Protect Cannabis Consumers 

What are the drug testing laws covering your California workplace? Can your employer test you for cannabis use via a hair or urine sample or a mouth swab drug test? Does the law protect you in any way?

Legal clauses protect users of alcohol, tobacco, and prescription drugs in the workplace, but the same (or similar) protection for weed users is sorely lacking. 

That is, until now. There’s a new bill pending that’s a potential game-changer for ganja lovers in California. 

Employee Rights: Can You Love Weed and Still Go to Work? 

In California, recreational and medicinal marijuana use is legal. In short, here are the current weed regulations in the Sunshine State: 

• You can use weed for medical purposes (with a medical provider’s recommendation) when you are 18 or older. 
• You must be at least 21 or older to legally use and buy weed. 
• You can use cannabis on private property and at weed-friendly establishments but not in public places like parks, restaurants, or places of work. 
• You can grow up to six weed plants if you are 21 or older. 
• When driving, keep the cannabis product in its sealed container or package in the trunk of your vehicle. 
• You can’t drive while under the influence of cannabis. 
• You may possess an ounce (28.5 grams) of cannabis plant material and 0.28 ounces (8 grams) of concentrated cannabis. 

When Can a Workplace Legally Test Staff for Drugs?

[caption id="attachment_9870" align="alignright" width="512"] Few workers will face a drug test, but it doesn't make the fear any less real.[/caption]

As a job applicant or employee, you have rights. The California state Constitution includes a right to privacy for government employees and those working in the private sector. 

The right to privacy means you have the right to avoid being tested for drugs, but only in certain circumstances. 

An employer needs to adhere to strict laws when testing applicants and employees for drugs. Here are the current circumstances when a workplace in California can legally test their staff for drug use: 

• Testing applicants as a condition of employment 

The employer needs to test all applicants and not discriminate against certain applicants based on protected characteristics such as disability or race. 

You need a doctor's written authorization to use weed for medicinal purposes. But if you test positive for weed, an employer may legally refuse to hire you.

• Testing an employee based on reasonable suspicion 

If an employer has reasonable suspicion based on facts and deductions that an employee is using drugs or alcohol, they may require the employee to undergo testing. 

• Testing at random 

When an employer wants to administer random drug testing, they must provide a notice of intent to current and potential employees. 

There are, of course, exceptions to this. For example, where an employee holds a position that may affect public safety, it’s actually constitutional for employers to enact random drug tests without notice.

What Places of Work Typically Drug Test Their Staff (Mouth Swab Drug Test, Urine Test, and More) 

Smoking pot at home is a-okay, but what about showing up to work when you’re still high? Or the fact that THC can linger in your system long after that joint you smoked? What if you are a medical cannabis patient?

Employers have the right to a drug-free workplace but without discrimination. Since cannabis is considered a Schedule 1 drug under federal law, employers can request a drug test, provided it falls within the legal bounds. 

According to a study by the American Addiction Centers on Glassdoor job postings and drug screenings, fewer and fewer employers are testing their staff for drugs. In the US, fewer than two percent of jobs require pre-employment drug tests. Thats good news!

Government, healthcare, hospital, and manufacturing positions typically request pre-employment drug tests. Employers in the healthcare, medical, logistics, and transport industries do regular drug screenings. 

Amazon, for example, tests for drugs. But in 2021, the eCommerce giant announced that it would no longer include weed in its comprehensive drug screening program for certain positions. 

New Protections Proposed: New Bill for Cannabis Consumers 

Laws evolve, albeit slowly. And it’s high time that laws protect cannabis consumers, especially patients.

Legislative debates continue on workplace safety and cannabis intoxication. Nationally, there’s no legal limit for when a person has an unsafe level of THC in their system like there is for alcohol and other drugs. 

No drug test for ganja can accurately measure how frequently or how much pot someone uses. Even a mouth swab drug test. These tests aren't even accurate to determine whether you are currently intoxicated. 

A drug test for weed simply tells your employer you’ve used cannabis at some point in the recent past. Maybe today, maybe yesterday, maybe a month ago. Since weed can stay in your body for months, failing a drug test is possible even if you haven’t smoked pot for weeks. 

This led to a new bill introduced in the California Assembly in February 2022. Assembly Bill 2188 would amend the Fair Employment and Housing Act and prevent employers from discriminating against employees for using pot recreationally. 

Employees would be safe should they fail a weed drug test. However, it’s still illegal to be high at work and use cannabis on the job. Plus, there are exceptions for employees at drug-free workplaces. 

The Democratic Governor of California, Gavin Newsom, has until September 30, 2022, to decide whether this bill should be signed into law. 

If Newsom decides in favor of the bill, it will take effect on January 1, 2024, and California would join six other states (Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island) that have laws protecting employees and their right to use recreational weed. 

Shutting out the Mouth Swab Drug Test 

Smoking regular tobacco at work has never carried legal ramifications, so why should smoking or using cannabis? 

It’s time for the law to catch up and protect recreational cannabis users.