Just a Reminder on Recent CA Background & Drug Testing Laws
CA Cannabis Testing Prohibitions
Effective January 1, 2024, California 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 non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids in employment decisions.
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.
It’s important to understand that the Lab and MRO will not redact positive marijuana results from your report, even for employees in restricted states. They are legally obligated to test for and report on all drugs in the panel on the custody and control form. It is your responsibility to ensure you order the correct panel.
For the full article, you can read the blog post here.
As a side note, 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, Rhode Island, and Washington (also effective January 1, 2024). 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.
If you aren’t sure your panels are up to date, or if you need additional state specific panels, please contact Customer Service.
CA Fair Chance Act
Although the changes went into effect on October 1, 2023, we are still getting some questions about the updates to the California Fair Chance Act. If you missed our update last Fall, you can read the full blog post here.
In a nutshell,
- The definition of “applicant” was expanded to include job seekers AND current employees, so you’ll need to be extremely mindful of compliance obligations when running backgrounds or updates on current employees.
- Examples have been provided on additional types of information that may be relevant regarding criminal history, including disability (including, but not limited to past drug addiction or mental impairment), trauma, domestic or dating violence, sexual assault, stalking human trafficking, duress, or other similar factors.
- You are required to do an “initial” individualized assessment before sending the notice or preliminary decision.
- You can’t state that persons with a criminal history will not be considered in job ads or postings
There are, of course, exemptions, so we recommend you read the entire blog post and confer with counsel to ensure you are compliant.
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.
