Recent developments in California and New Jersey have strengthened protections for workers who use cannabis on their own time.
In mid-September, California Governor Gavin Newsom signed into law AB 2188, which prohibits adverse employment actions against employees who use cannabis off the clock while not present at their place of employment. This law is one of the latest in a string of legislation Gov. Newsom has enacted to redress the harms of cannabis prohibition and expand both the legal market and the growing body of state cannabis regulations. Earlier this month, he also signed a bill the opens accessibility to legal cannabis products for medical patients by overriding local bans on medical cannabis delivery.
On the East Coast, the New Jersey Cannabis Regulatory Commission (Commission) forbids employment discrimination merely because an employee tests positive for cannabis. However, the Commission did not prohibit employers from taking action based on "reasonable suspicion." The Commission's "Reasonable Suspicion Observed Behavior Report" makes clear that "reasonable suspicion must be based on specific, contemporaneous, articulable observations" made by a manager, not a co-worker; multiple manager-level reports are preferred.
The accuracy of cannabis testing, though improving, still leaves much to be desired when compared with the timing of and testing for other illicit substances. Alcohol, for example, can be detected with a breathalyzer that returns a person's BAC in a few minutes and gives a clear indication of recent use. As cannabis takes longer to metabolize in the bloodstream than alcohol, it is more difficult to determine how long it has been since a person's most recent use. Employees can test positive for cannabis even when their last use was several days or even weeks ago. An employee might be accused of using cannabis at work after a positive test when the last use was actually over the weekend or while off the clock; it then becomes the employee's responsibility to prove the timing of last use, which is often difficult and complicated. The concern of a person using cannabis while at work or while driving will remain ongoing until better testing methods become readily available.