California’s AB 2188 passed the Legislature on August 30 and was approved by the Governor on September 18, 2022. The new law imposes limitations on employers, unlike any other state. Beginning January 1, 2024, California employers will be limited in testing employees for marijuana. In relevant part, the new law states as follows:
“(a) Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.
(b) The intent of drug tests is to identify employees who may be impaired. While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.
(c) As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites. These alternative tests include. . . tests that identify the presence of THC in an individual’s bodily fluids.” (Emphasis added)
The law adds Section 12954 to the Government Code to read:
(a) It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(1) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. (Emphasis added)
(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (emphasis added)
The law provides that employees cannot possess, be impaired by, or use cannabis on the job. Under state law, employers are specifically permitted to have a drug and alcohol-free workplace. Employer rights under federal law or regulation are also unaffected.
The new law exempts employees in the “building and construction trades” and applicants and employees hired under Department of Defense regulations, other federal agencies, or those applying for or working under a federal contract or grant.
Beginning January 1, 2024, employers who wish to take action against an applicant or employee must do so based on a drug test that identifies “Tetrahydrocannabinol (THC)” or a metabolite that “correlation to impairment on the job.”
To our knowledge, no such testing capability exists in the market today to test solely for THC and not its metabolites.
Many public and private organizations are working on test capabilities to determine the presence of THC or other metabolites that correlate to impairment on the job. At least one such organization will be ready to meet the January 1, 2024, deadline.
California will join New York, New Jersey, New York City & Philadelphia in prohibiting pre-employment testing of marijuana. This trend is expected to grow over the next few years, with many other states and municipalities adopting similar rules. For now, employers in California must examine their job descriptions to determine if they meet the exemptions of the new law.
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