Progress, Not Pee: New Bill Targets Workplace Discrimination for Cannabis Use

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Meanwhile, across the U.S., protecting employees for off-the-clock cannabis use is rapidly becoming a major issue.

 

A funny thing happened on the way to legalization: we didn’t really think about our jobs.

Sure, by making marijuana legal, a huge number of new gigs were created. But this issue has to do with consumers and what rights they have once they’ve clock into the office for the day.

In California, for instance, the implementation of Prop 64 in 2018 did not include any language to challenge “drug-free” workplaces and the rules such employers implement. Other states (Arizona, Nevada, Colorado) have addressed this issue but not the Golden State.

The result is that, in California, it is legal to consume cannabis but it is also legal to terminate an employee who tests positive for weed. That’s something California Assemblyman Bill Quirk, D-Hayward, is hoping to change.

Late last month, Quirk introduced Assembly Bill 1256. The intent of the bill, per the Sacramento Bee, “[is] to prevent employers from using past evidence of marijuana use, such as a hair or urine test, as justification for discrimination against an employee, such as denying or terminating employment.”

To be clear: the goal here is not to allow people to operate heavy machinery while stoned out of their minds. There are, for instance, exemptions in AB 1256 for things mandated by the Department of Transportation, employers in the building and construction trades, and those under a federal mandate to test for THC.

The real goal with AB 1256 appears simply to bring science to the discussion by pointing out that testing one’s hair or urine for cannabis has no correlation with that individual’s active level of impairment.

California NORML director Dale Gieringer, a sponsor of the bill, told the Sacramento Bee that using urine to determine whether somebody is intoxicated with cannabis is the equivalent of finding beer or wine bottles in a person’s trash and concluding that they must be drunk.

“You can’t judge a worker by their urine,” Gieringer said. “If you do that, you’re going to have a piss-poor workforce.”

The issue is about understanding how cannabis works within the body.

That’s because testing hair and urine does not reveal how much THC (the psychoactive compound in cannabis) is actively in one’s system. For the time being, all we have to reliably determine active impairment is blood tests – which of course kicks off a whole different discussion with regards to varying levels of tolerances and the feasibility of establishing a universal “legal limit” for THC.

Leaving that aside for now, what’s indisputable is that the only thing hair or urine tests can tell us is whether someone has used some amount of cannabis in a given period of time.

Speaking with LA Weekly’s Jimi Devine, California NORML deputy director Ellen Komp clarified how AB 1256 — which is still likely to undergo a number of changes before facing any votes — seeks to close this illogical loophole.

“Our intent,” Komp told Divine, “is to end employment discrimination based on testing for non-psychoactive cannabis metabolites in urine, hair or bodily fluids for both recreational and medical cannabis users while allowing employers to maintain a safe workplace by disallowing cannabis use or intoxication on the job.”

Divine also reported that per PBS, as of 2017, America was spending over $8 billion a year on urine testing.

As of late, it’s also become alarmingly easy to find examples of the workplace discrimination Gieringer and Komp are talking about.

Take Nathan Miller, for instance.

Miller is an ex-Amazon worker and a licensed medical marijuana patient. He is also currently suing his former employer in Pennsylvania federal court for wrongful termination as a result of cannabis use.

Despite the fact that Miller suffers from PTSD, that he willingly disclosed his cannabis use to supervisors throughout his employment, and that Pennsylvania’s Medical Marijuana Act bars employers from discriminating and retaliating against employees certified to use medical marijuana, Amazon still gave him the boot after he tested positive on a drug test mandated by, of all things, a promotion.

Court filings reviewed by Law360 show that Miller was terminated last July after testing positive for cannabis on a urine test that he was obligated to take as part of a promotion to a full-time role with an Amazon fulfillment facility.

Though Miller “allegedly showed […] an Amazon human resources employee his medical marijuana license” in an effort to explain his valid medical situation, he nonetheless subsequently received a call from Amazon’s human resources department “informing him that he had failed the drug test because of marijuana and was fired as a result of his usage.”

Miller’s efforts to hold the tech goliath accountable follow a similar suit filed in New Jersey, where, as Law360 detailed, last year a federal judge ruled that Amazon “could not use the Americans with Disabilities Act to keep in federal court a wrongful discrimination suit filed by a former warehouse employee who failed a drug test after using medical marijuana.”

This trend is not limited to blue-collar workers, either.

Last week, the Biden administration issued some new guidelines “meant to address an unexpected hurdle it faced as it aimed to quickly fill key White House positions: recreational marijuana use.”

As NBC News detailed, “the White House will now, on a case-by-case basis, waive a requirement that potential appointees in the Executive Office of the President (EOP) be eligible for a ‘Top Secret’ clearance. Officials said a waiver would only be granted to those who have used marijuana on a ‘limited’ basis and who are in positions that don’t ultimately require a security clearance.”

That notable update arrived almost simultaneously with news of a new memo from the Office of Personnel Management (OPM) advising that admitting to past marijuana use should not automatically disqualify people from being employed in the federal government.

“It would be inconsistent with suitability regulations to implement a policy of finding an individual unfit or unsuitable for federal service solely on the basis of recency of marijuana use,” wrote Acting OPM Director Kathleen M. McGettigan. “Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use.”

(Also kudos to Marijuana Moment’s Kyle Jaeger for highlighting one especially insane tidbit apparently contained in the new White House guidelines, which apparently says that, depending on how recent a given White House worker’s marijuana use occurred, “they may be asked to work remotely for some amount of time, for unspecified reasons.” Huh?)

This isn’t about someone getting caught lighting a joint on the job, but rather people who enjoy cannabis, legally, on their own time, but still face the prospect of professional repercussions in the workplace. At some point, one must ask: why is the science that inspired us to legalize cannabis not being employed to determine workplace rules concerning off-the-clock cannabis usage as well?

In short, it’s about time we start prioritizing progress and common sense over pee.

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