For the past two decades, Oakland has been on the forefront of embracing cannabis. But the city which led the way on regulating, taxing, and making marijuana a low law enforcement priority is still testing its employees for pot.
That could soon change. Five years after Californians voted to legalize recreational cannabis use, the Oakland City Council is moving forward with a proposal to end the practice of testing employees and prospective employees for traces of cannabis in their system.
The City Council’s Public Safety Committee on Tuesday voted 4-0 to bring Councilmember Rebecca Kaplan’s ordinance to the full council for approval. But first, city staff must meet and confer with labor unions that represent city workers about the policy change.
State law allows employers to perform “suspicionless” drug tests as a condition of employment, but Kaplan and others have said the city’s testing policy is outdated and out of touch with the majority of Oaklander’s views on cannabis.
Certain tests can unfairly punish workers or job applicants for using a legal substance while off work, supporters of the ban said Tuesday. Urine and hair samples, for example, reveal inactive drug residues that can stay in someone’s body for days or weeks, long after the drug’s effects are over. As a result, according to Kaplan, responsible cannabis consumers can be caught and punished for conduct that doesn’t harm or endanger anyone.
“We shouldn’t be weeding out workers for something that is legal,” Kaplan told The Oaklandside. “Oakland is the reason there is legalization in America. Why on Earth would we take a step in the wrong direction and punish workers for off the job legal conduct?”
The ordinance would not apply to testing workers suspected of being under the influence at work, or under a “last chance” agreement in which a worker with a documented substance abuse issue agrees to terms of employment that could include testing. If passed, it would clarify Oakland’s testing policy so that the only other time the city would test employees for cannabis is when the federal government requires it.
All non-fire department commercial drivers—such as street sweepers— are subject to random drug testing under federal Department of Transportation regulations. Because the city receives federal funding, it is required to follow federal drug-free workplace regulations, city spokesperson Karen Boyd said.
Another exception would be in instances where a labor contract requires drug screenings. The current firefighter contract, for example, requires a drug test as part of annual physical examination. Firefighters are also subject to testing “for cause,” like in the event of an on-duty vehicle crash where intoxication might have been a factor.
Oakland would join a growing number of cities and states enacting laws protecting employment rights of recreational cannabis users. And California may soon follow. Earlier this year, Assemblymember Bill Quirk, D-Hayward, introduced a bill intended to prevent employers from using evidence of prior marijuana use as justification for terminating an employee, or denying a person a job. The Oakland City Council in July unanimously passed a resolution in support of AB 1256.
Dale Gieringer, director of California NORML and a sponsor of AB 1256, has said urine tests for cannabis are akin to finding liquor bottles in an employee’s trash and concluding they must have been drunk at work. He applauded council members for taking up the local ordinance, which if approved would be the first by a city in California.
The tests don’t “have anything to do with impairment,” Gieringer told The Oaklandside. They “test for inactive drug residue that can stay for days and weeks after use. It’s a way of marking a suspect group and disqualifying them for no good reason.”
Felipe Cuevas, president of the local chapter of the Service Employees International Union, told council members that existing policy has done just that: disqualified applicants at a time when Oakland has numerous unfilled city jobs.
“It is just not fair and no longer adequate for the society we live in,” Cuevas said.
A majority of the City Council indicated they support the proposed ordinance. Councilmembers Nikki Fortunado Bas, Dan Kalb and Sheng Thao—who were not part of Tuesday’s unanimous vote because they don’t sit on the Public Safety Committee—have signed on as co-sponsors to the measure and will likely vote for it when it comes back to the full council. A date hasn’t been set for the hearing yet.
“I just want to protect people’s rights,” Kalb told The Oaklandside. “If they are engaging in legal behavior and have fully recovered from that by the time they’ve come to work, great. That’s all the city needs to know. We don’t need to know how many days ago you did this or that as long as you are not under the influence now.”