Off-Duty Cannabis Use and Employment Law: A Game Changer for California
For employers with California job seekers or employees, last year’s AB 2188 was a shot across the bow, letting employers know they needed to review and update their drug testing policies. In case you missed it, California has joined a number of other states who have passed laws making it unlawful to discriminate against an applicant or employee based on off duty / off premise cannabis use or to use drug test results that reveal the individual has nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids in employment decisions. The new California law takes effect January 1, 2024.
Exceptions to the law exist, including applicants or employees required to be tested for controlled substances under applicable law (such as DOT commercial drivers), some applicants or employees hired for positions requiring a federal government background investigation or security clearance, and employees in the building and construction trades.
The goal of the law is not to prevent employers from ensuring a safe and sober workplace, but to protect an employee’s legal off duty cannabis use. The challenge is that currently available and commonly used testing modalities cannot prove cannabis related impairment. Because of this, an employer cannot rely on a positive cannabis drug test alone for an employment decision.
Reasonable suspicion cannabis testing is not off the table, but employers should work with counsel to build a robust and defensible reasonable suspicion testing process, which includes training managers on recognizing and documenting the signs of impairment. Some employers are also considering a move to oral fluid testing for reasonable suspicion, which has a shorter detection window, thus limiting the timeframe the employee must claim off-work use.
If you are interested in removing cannabis from your drug test panel, please contact your Customer Service Representative as soon as possible. We anticipate the closer we get to January 1, 2024, the longer it will take to update drug testing panels due to the rush to comply. Currently it takes about two weeks to update a client’s panels. By early December, it takes three to four weeks.
If you have employees in any of the following cities or states, testing for cannabis may be heavily restricted or even prohibited: Arizona, Connecticut, Delaware, District of Columbia, Michigan, Nevada, New Jersey, New York, Oklahoma, Philadelphia, and Rhode Island. Additional states may allow for testing but may require the employer to make a reasonable accommodation for employees who have a valid medical marijuana patient ID card.
As with all compliance challenges, Frasco Profiles is providing this information to bring this to your attention. We are not attorneys and cannot provide legal advice. We strongly urge you to consult with counsel to develop and maintain policies and procedures aligned with your industry, geographic location, and regulatory environment.
Frasco® Profiles is NOT a law firm. The information contained in this post is for general informational purposes only. We are not providing legal advice and strongly recommend consulting your legal resources before taking any action.
