As of January 1, 2024, California has introduced significant changes to its drug testing laws, particularly concerning cannabis. These changes reflect a shift in how employers can legally manage drug testing in the workplace, especially regarding the use of marijuana by employees and job applicants.
Assembly Bill 2188: Key Provisions
- Off-Duty Cannabis Use: AB 2188 amends the Fair Employment and Housing Act, making it unlawful for employers to discriminate against applicants and employees for their off-duty, off-site cannabis use. This change is significant in a state where recreational cannabis is legal, as it acknowledges the right of employees to engage in lawful activities outside of their work responsibilities.
- Testing for Non-Psychoactive Cannabis Metabolites: Traditional drug tests, which often screen for non-psychoactive cannabis metabolites in hair and bodily fluids, can no longer be used for pre-employment drug screening or as a basis for disciplining or terminating an employee. These metabolites can be detected long after the effects of cannabis have worn off, hence do not accurately indicate current impairment.
- Exceptions to the Law: Notably, AB 2188 exempts employees in the construction and building industries and those hired for positions that require federal background and clearance checks. It does not exempt employees in other safety-sensitive industries such as transportation, health and services, manufacturing, and agriculture.
Implications for Employers
- Permissible Drug Tests: Employers can still conduct pre-employment testing and test employees based on reasonable suspicion of impairment. However, they must use tests that look for the psychoactive compounds in cannabis, indicating current impairment, rather than past use. This can include THC tests and impairment tests measuring an individual employee against their own baseline performance.
- Maintaining a Drug-Free Workplace: Despite the new regulations, employers still retain the right to maintain a drug-free and alcohol-free workplace. This includes the ability to prohibit the possession, impairment by, or use of marijuana on the job. The new law does not affect employers’ rights or obligations specified by federal law or regulation.
The Role of Technology in Drug Testing
The changes in law prompt the need for new testing technologies. For example, some companies are developing breathalyzers that screen for THC but not nonpsychoactive metabolites, potentially allowing employers to isolate cannabis use during or immediately preceding the workday. These technologies are still primarily in research and development, but their availability could grow in the near future.
California’s new drug testing laws in 2024 mark a significant development in employment law and practices, particularly in the context of marijuana use. The state is adapting to the realities of legal recreational cannabis while attempting to balance the rights of employees with the needs of employers to maintain safe and productive workplaces.
As these laws take effect, both employers and employees must stay informed about their rights and responsibilities to ensure compliance and fair practices in the workplace.