California Bill To Bar Employment Urine and Hair Drug Tests for Cannabis Advances

A bill that would add protections to employees in California who consume cannabis off the clock is advancing and could head to the Senate floor shortly. The bill would disallow job discrimination from employers, in most cases, based on urine or hair tests that detect only inactive metabolites of THC.

Urine or hair tests only can detect inactive metabolites of THC days or weeks later, making them a poor indicator of impairment—or even recent use. The bill would still allow the use of oral swab or computer-based performance tests—which is actually a more reliable indicator of recent use or impairment.

While Assembly Bill 2188 would protect employees in California who smoke off the clock from inaccurate drug testing formats, it would continue to allow an employer to take action against employees who are impaired on the clock. There are also exemptions, of course, for federal workers and construction workers.

The bill is supported by the United Food and Commercial Workers (UFCW), Service Employees International Union (SEIU), California Nurses Association, CA Board of Registered Nursing, and UDW/AFSCME Local 3930. In addition, the California Employment Lawyers Association, United Cannabis Business Association, Cannabis Equity Policy Council, Americans for Safe Access, and California Cannabis Industry Association, also support the bill.

Employers can’t test for THC—only for THC metabolites, the waste product of THC, which urine tests and hair tests look at. Urine tests are not a reliable indicator of impairment based on THC metabolites, nor do they have any value for employers who might have bigger things to worry about, such as alcoholism or opioid abuse. 

“This whole piss-testing regime is really the result of government fraud in the first place,” California NORML Director Dale Gieringer tells High Times. “There was never any good evidence that piss testing, in particular looking for metabolites, had anything to do with public safety.”

It’s nothing more than a remnant of the Reagan-era Drug-Free Workplace Act of 1988, which picked up amid the peak of “Just Say No” fever.

Gieringer continues, “There’s never been an FDA study to show that that’s true. I mean, if I had a new drug, or medical device, that I said, ‘If you give this to your employees, they will have fewer accidents, and they’ll be more reliable and better employees.’ If I had such a medical device, or drug, the FDA would require me to do doubleblind controlled clinical studies proving that that’s the case.”

“That was never, ever done for urine testing. It was basically a scam by former Reagan drug officials who—after leaving the government—went into the urine-testing business, and were well-connected, in general, with the government, who sort of decided that it would be profitable to require these tests a long time ago—the late ‘80s. And so we’re just putting an end to that fraud.”

California NORML issued a press release, urging Californians to reach out to their state senators. “Scientific studies have failed to show that urine testing is effective at preventing workplace accidents. Numerous studies have found that workers who test positive for metabolites have no higher risk of workplace accidents.”

“Ironically, under current drug testing rules, workers may use addictive opiates for medical use, but are forbidden to use medical cannabis, which has been shown to reduce opiate use,” Gieringer continued.

The California Assembly approved the bill, as well as the Senate Judiciary and Labor committees, and the bill was assigned to the Appropriations suspense file.

In the event that the bill is approved at a committee hearing on August 11, it will move to the Senate floor for a vote. California NORML is urging residents to write a letter to your state senator in support of AB 2188.

Twenty-one states currently have laws protecting employment rights for medical cannabis users, and five states (Nevada, New York, New Jersey, Montana and Connecticut) plus several cities (New York City, Washington DC, Philadelphia, Atlanta, Baltimore, Kansas City MO, Rochester NY and Richmond VA) protect recreational cannabis consumers’ employment rights,” added Cal NORML Deputy Director Ellen Komp. “California, a global leader in progressive causes, still has no protections for its workers who consume cannabis. It’s high time to change that and protect California’s workers.”

California could be next on the list to provide protections for employees who consume cannabis off the clock.

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NYPD Says It Will Stop Testing Cops for Weed, Then Reverses Course

A New York Police Department memo made public on Wednesday advised officers that they would no longer face drug tests for cannabis, although the department quickly reversed course and announced that screenings for weed would continue while the policy is reviewed.

“The New York City Law Department has directed the NYPD to cease all random, scheduled and pre-employment testing for marijuana,” an NYPD spokeswoman said early Wednesday. “The Department will continue to administer marijuana screenings to personnel when there is indications of impairment and is reviewing its current policies in light of this directive.”

The memo from the Law Department, which was dated July 11, said that such screenings for marijuana are inconsistent with last year’s Marijuana Regulation and Taxation Act, which bans repercussions on employees for off-duty recreational cannabis use. After receiving the directive from the city’s Law Department, the NYPD Commissioner for Legal Matters sent a memo to department heads to notify them of the policy change.

“The rationale behind this determination is that there is no test for marijuana that conclusively determines current intoxication, making it impossible to determine by drug test alone whether an employee has tested positive for marijuana because of improper use on the job or use during statutorily protected off-hours use,” reads NYPD the memo.

“Therefore, starting immediately, the Department should only drug test a member of service for marijuana if there is reasonable suspicion that the member is impaired by marijuana on the job in such a manner that impacts their job duties or where there is a federal requirement mandating testing for marijuana use, such as title which requires a Commercial Driver License,” the NYPD memo continues.

News Quickly Walked Back

However, an NYPD spokesperson said later in the day that police department leaders were talking with representatives of the Law Department about potential conflicts with the policy and federal law. In the meantime, implementing the policy will be put on hold.

“While these discussions continue, there is no change in NYPD policies, procedures, or testing protocols regarding the use of Marijuana by uniformed members of the service,” the spokesperson announced.

NYPD Chief Keechant Sewell subsequently issued a memo to all commanders noting that cops are still banned from smoking weed, writing that “existing department policies that prohibit the use of marijuana remain in effect. Members of the service are not permitted to use cannabis on or off duty and will continue to be subject to random, scheduled, and for-cause drug screening.”

Jennifer Cabrera, an attorney with the cannabis law firm Vicente Sederberg’s New York office, said that police officers should be free from drug screenings for cannabis.

“Officers of the NYPD should be free to consume cannabis in their free time just like any other resident of New York,” Cabrera wrote in an email to High Times. “Just as officers can enjoy a drink or visit a bar off duty, they should be able to responsibly enjoy cannabis.”

FDNY To End Testing for Pot

The Law Department directive also apparently was issued to leaders at the New York City’s fire department. A representative from the Uniformed Firefighters Association (UFA), the union that represents the city’s firefighters, said that its members would no longer be subject to drug testing for cannabis.

“The UFA has been informed that new Department guidelines are forthcoming regarding changes to the current FDNY drug testing policy,” the UFA said. “We have been informed that the Department will no longer randomly test members for marijuana use.”

The union went on to note that firefighters are not permitted to be high at work.

“Members are reminded that they must be fit for duty when they report to work, and members may still be subject to testing while at work if they appear unfit for duty,” the union said.

A New York State Police spokesman told reporters that the agency has not changed its policy and would continue to test its officers for drugs including cannabis. Under the policy, officers are subject to both random and scheduled drug testing.

Last year, the National Organization for the Reform of Marijuana Laws issued a statement calling for an end to workplace drug testing for cannabis.

“Suspicionless marijuana testing in the workplace, such as pre-employment drug screening, is not now, nor has it ever been, an evidence-based policy,” wrote NORML deputy dirctor Paul Armentano. “Rather, this discriminatory practice is a holdover from the zeitgeist of the 1980s ‘war on drugs.’ But times have changed; attitudes have changed, and in many places, the marijuana laws have changed. It is time for workplace policies to adapt to this new reality and to cease punishing employees for activities they engage in during their off-hours that pose no workplace safety threat.”

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