New rules for California employers testing for marijuana use

By Turn Staff
On February 20, 2024

Background Checks

The enactment of California Assembly Bill 2188 signifies a groundbreaking development in the legal landscape by providing explicit protections for users of recreational marijuana in the employment sphere.

Safeguarding Employee Rights in California

California has taken a significant step in providing legal protections for users of recreational marijuana in the employment context. The introduction of California Assembly Bill (“AB”) 2188, effective from January 1, 2024, brings amendments to the Fair Employment and Housing Act (“FEHA”), making it unlawful for employers to discriminate against applicants or employees based on (1) off-the-job, away-from-the-workplace marijuana use and (2) non-psychoactive cannabis metabolites found in employer-required drug screening tests.

The psychoactive component in cannabis, Tetrahydrocannabinol (“THC”), induces a high in users. Non-psychoactive cannabis metabolites, on the other hand, indicate past marijuana use and are stored in the body after THC is metabolized. AB 2188 essentially prohibits employers from penalizing applicants or employees solely based on the presence of non-psychoactive cannabis metabolites, emphasizing the distinction between impairment on the job and long-term use.

Starting in 2024, traditional tests for marijuana use that focus on non-psychoactive cannabis metabolites cannot be used for pre-employment screening or as grounds for employee discipline or termination. The law specifies that applicants and employees can still face consequences for (1) present impairment and/or (2) the presence of psychoactive chemical compounds of marijuana. However, certain exemptions apply, such as employees in construction and building industries, and those requiring federal background and clearance checks.

Balancing Safety and Employee Rights

Notably, safety-sensitive industries like transportation, health services, manufacturing,
and agriculture are not exempted. The law explicitly states that employees are not permitted to possess, be impaired by, or use marijuana on the job, and employers retain the right to maintain a drug-free and alcohol-free workplace as per California Health and Safety Code section 11362.45(f). AB 2188 underscores that testing for non-psychoactive cannabis metabolites does not correlate with current impairment on the job. The law advocates for alternative testing methods that focus on psychoactive components rather than non-psychoactive metabolites, and it discourages reliance on outdated testing practices. The California Legislature suggests the use of impairment tests to determine on-duty or on-site employee impairment, without delving into the specifics of these tests.

Comparable to alcohol tests at traffic stops, impairment tests could offer a viable solution. Additionally, the legislature highlights advancements in science, pointing to alternative drug tests, such as saliva tests, to identify recently consumed THC, the active psychoactive component.

While oral fluid tests are recognized for this purpose, their real-time feasibility remains uncertain. Striking a balance between employee safety, maintaining a diverse workforce, and complying with AB 2188 is crucial.

New opportunities

The hope is that drug testing companies will seize this opportunity to develop and refine testing products tailored to the evolving needs of California employers.

Given the changes introduced by AB 2188, California employers not exempted from the statute should review their drug screening policies, particularly those related to marijuana, in hiring, discipline, and termination. Policies utilizing common testing methods for non-psychoactive cannabis metabolites should be revised to avoid liability under FEHA. Employers may consider testing methods that assess impairment during interviews or while on duty, as well as tests specifically targeting the psychoactive component of marijuana. Consulting with labor and employment counsel is recommended to ensure compliance with AB 2188 as it comes into effect in the new year.

Conclusion

Commencing on January 1, 2024, the amendments to the Fair Employment and Housing Act establish the illegality of employer discrimination based on off-duty marijuana use and the presence of non-psychoactive cannabis metabolites in drug screening tests. While the legislation preserves employers’ rights to maintain a drug-free workplace, it mandates a shift away from traditional testing methods focusing on non-psychoactive metabolites. Employers are encouraged to revise drug screening policies, removing reliance on outdated practices and embracing alternative methods that assess current impairment rather than past marijuana use. As California employers navigate this transformative legal landscape, consultation with labor and employment counsel is paramount to ensuring compliance with the nuanced provisions of AB 2188 and adapting policies to align with the evolving standards set forth by this pioneering legislation.

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Disclaimer:

Turn’s Blog does not provide legal advice, guidance, or counsel. Companies should consult their own legal counsel to address their compliance responsibilities under the FCRA and applicable state and local laws. Turn explicitly disclaims any warranties or assumes responsibility for damages associated with or arising out of the provided information.

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