California legislators are primed to follow a few pioneering states when they decide whether to advance a bill granting employees statutory protections to use cannabis.
If the proposal becomes law, California will become the seventh state to protect adults who legally use cannabis from employer sanctions. An additional 15 states have narrower laws that protect medical marijuana patients from adverse treatment from employers for their legal use of cannabis, according to the National Organization for the Reform of Marijuana Laws.
Individuals can legally use cannabis in more than half of states but often can be fired if traces of cannabis are detected in their bodies, even though that detection doesn’t prove current intoxication or impairment.
The push for new state laws comes in part from a tight labor market and efforts to increase equity in the workplace, as well as a diminished stigma for pot use, lawyers said.
“As long as the federal prohibition remains, you’re going to see states, in my opinion, continue to enact legislation to protect employees and make sure they are not discriminated against because they’re using cannabis,” said Jonathan Robbins, a lawyer who leads Akerman LLP’s cannabis practice. “It will continue. It has to,” he said.
California offers one example of a legal gray areas around cannabis use. Voters through ballot initiatives legalized marijuana use for medicinal purposes in 1996 and for recreational purposes in 2016, but legislators haven’t yet extended protections for employees who legally use cannabis. Instead, employers can still fire or refuse to hire individuals who use cannabis away from the workplace or off the job.
On Thursday, the California Senate Appropriations Committee will decide whether to move to the Senate floor legislation (A.B. 2188) making it illegal for an employer to discriminate against job applicants or existing employees because they legally consume cannabis.
Varying Laws
Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island have each enacted statutes limiting employers’ ability to refuse to hire or take adverse action against workers for their off-duty recreational use of cannabis.
The employee protections have led some firms to question the benefits of testing for the presence of cannabis. Potential hires and employees, particularly younger workers, also are becoming more assertive about their working conditions, including a refusal to undergo drug testing, the lawyers said.
The state laws aren’t identical, forcing multi-state employers to decide whether to implement one cannabis-use policy or tailor employee policies to individual jurisdictions.
In Connecticut, for instance, employers may prohibit employees or applicants from off-the-job cannabis if the employer has adopted a written workplace policy that prohibits the practice. The state also exempts manufacturing and health care companies from the law, allowing those industries to demand their employees forego recreational use of cannabis at any time.
In Rhode Island, employers may prohibit the use of cannabis within the 24-hour period prior to a scheduled work shift if employee duties are “hazardous, dangerous or essential to public welfare and safety.”
Montana nonprofit organizations that discourage the use of one or more lawful products as one of its primary…
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