Proposed Assembly Bill 1256, by Assemblyman Bill Quirk (D-Hayward), would prohibit most employers from using a positive THC drug test as a basis for an employment decision.  Which employment decisions?  Well, most all of them or an employer would be guilty of “discrimination”.  That’s right, smoking marijuana is now some sort of protected class.  Under this proposed Bill, “an employer shall not discriminate against a person in hiring, termination, or any term or condition of employment on account of the fact that a drug screening test has found that person to have tetrahydrocannabinol in their urine.”  Nice that the Assemblyman doesn’t believe that California employees deserve a sober workplace.

The Bill, at least as it currently stands, does not apply if the employer is required to test for THC by federal law or regulations, if the employer would lose a monetary or licensing-related benefit for failing to test for THC, or if the employment is in the building and construction trades.  As for the rest of California’s employees, well, they’ll just have to take their chances that their co-worker operating heavy equipment next to them did not enjoy lunch a little too much.

And, what impact will this have on California workers’ compensation?  This very short proposed Bill does not mention the intoxication defense of Labor Code section 3600. But, would an employer need to worry that it would “discriminate against a person” in a “term or condition of employment” by trying to ensure that they were sober before getting behind the wheel of a delivery vehicle, driving a forklift, operating a punch press, or pouring a steaming cup of coffee?  The employee may not be obviously high but could still pose a danger to themselves, their fellow employees, and even the general public.  Can the employer “discriminate” against an employee injured because he or she was high? How long before this proposed Bill is amended to include a prohibition against the workers’ compensation carrier “discriminating” against this employee?

California employees and employers deserve better.