Is employer drug testing for marijuana finished in California?
For some time, marijuana has been legal in California both for medical and recreational uses. In fact, California was the first state to pass a medical marijuana law.
Drug testing of applicants and employees is legal in California and very common. Courts have upheld a balance between drug testing because of safety issues and the employee’s reasonable expectation of privacy. This discussion will focus on employment drug testing solely for marijuana in California. Rumors have started that employment testing for marijuana is illegal in California.
The trend in State laws regarding drug testing and marijuana is moving towards protecting employees who use legal marijuana off duty and the fact that our traditional workplace drug testing does not measure workplace impairment. Urine and hair drug testing detects the metabolite of marijuana – THC – a nonpsychoactive cannabis metabolite. Oral fluid testing detects the parent drug of marijuana so could be an option for employer drug testing particularly for reasonable suspicion and post-accident.
California’s new law – AB 2188 amends the California Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate against an applicant or employee who has engaged in the lawful use of marijuana outside of work. This law does not take effect until January 1, 2024.
There will be some limited exceptions, but California employers will have to accommodate workers who engage in the off-duty use of marijuana, regardless of whether the use is for medical purposes. Traditional drug tests currently being available for marijuana drug testing will not be usable to terminate a worker, restrict hiring or otherwise penalize a worker because these tests do not indicate that a worker is impaired on the job.
This new law will not restrict or prohibit an employer’s rights to maintain a drug-free workplace or an employer’s right to prohibit workers’ usage, possession, or impairment by cannabis while on the job. The new law will have exceptions including Department of Transportation (DOT) regulated positions, employees subject to federal background check investigations, employees subject to security clearance and employees in the building and construction trades.
The development of new drug testing methodologies to detect impairment of marijuana is fast and furious but will take time. These new methodologies will need to be scientifically valid screenings for marijuana conducted through methods that do not screen for nonpsychoactive cannabis metabolites. These screenings will need to prove impairment. The new law does prohibit adverse employment decisions based on testing that shows the presence of nonpsychoactive cannabis metabolites (current testing methodologies).
Will employment drug screening for marijuana cease starting January 1, 2024? Perhaps yes, for many companies marijuana testing might go away. As new technologies emerge, there may be screening tests that become available that detect psychoactive cannabis and show impairment.
Employers should be advised that the use of cocaine, heroin, and methamphetamine (meth) is on the rise in California. Eliminating all drug testing would certainly create liabilities and safety issues for any employer.