California was the first state to have medical marijuana (1996) and the fifth state to legalize marijuana for recreational purposes (2016). Effective January 1, 2024, employers will have limitations regarding drug testing of applicants and employees for marijuana. California Assembly Bill 2188 (AB 2188) will prohibit employers from discriminating, terminating, or otherwise penalizing an employee or applicant because of their use of cannabis outside of the workplace.
Important Topics Covered in the Blog Post:
The main objective of the law is to protect employees who use marijuana outside of work from discriminatory hiring and employment practices. The new law will not allow employees to possess, to be impaired by, or to use marijuana on the job.
The details are that adverse action against an employee or applicant will be unlawful if the action is based upon either:
- the employee/applicant’s use of cannabis off the job and away from the workplace; or
- an employer-required drug-screening positive for non-psychoactive cannabis metabolites.
Can California Employers Continue to Test for Marijuana?
- Yes, but with certain limitations:
- Employers are allowed to drug test employees and/or applicants as long as the test does not screen for inactive cannabis use detecting non-psychoactive cannabis metabolites. This will eliminate urine and hair testing for marijuana but alternative methods such as oral fluid testing and breath testing for marijuana will be lawful.
- The new law applies to an employer with five (5) or more persons but does not apply to nonprofit religious associations and nonprofit religious corporations.
- United States Department of Transportation required drug testing will not be effected, marijuana use is prohibited, and marijuana drug testing is required currently only with urine specimen testing.
- Testing would be allowed when it is a condition of an employer for federal funding or federal licensing-related benefits, or to be able to enter into a federal contract.
- Law exempts employees in the construction and building industries indicating testing would be allowed.
Oral fluid testing for marijuana will detect the parent drug showing recent use. Oral fluid testing is not detecting non-psychoactive metabolites which do not indicate recent use. Urine and hair testing for marijuana will go away as testing with these specimens can give positive test results for weeks or even months after cannabis use.
What are my Options as an Employer in California for Marijuana Testing?
First off, drug free workplace policies must be updated and revised to eliminate urine and hair testing for marijuana. Eliminating marijuana testing can be an option but perhaps dangerous as this could cause safety and/or liability issues. Implementing new testing protocols can be an option. Consider switching your testing over to oral fluid. Employers can look to self-collect specimens with oral fluid testing and use this specimen to also test the other illicit drugs of abuse including: Cocaine, Amphetamines, Methamphetamine, Phencyclidine (PCP) and Opioids – Codeine, Morphine, 6-AM (heroin), Hydrocodone, Hydromorphone, Oxycodone, and Oxymorphone. Employers looking to switch over to self-collecting specimens for oral fluid drug testing will save money as compared to the traditional method of sending employees out to a clinic for a urine or hair drug test.
Revising your drug free workplace policies and changing drug testing protocols can be a complex process. Joe Reilly, President of National Drug Screening can be of assistance with this process. Call or e-mail Joe at 321-622-2020 or joe@nationaldrugscreening.com
There is a similar law in State of Washington also effective 01/01/2024 but this law only applies to pre-employment testing for marijuana: Washington’s new law, Senate Bill 5123
