New Legislation Protects Cannabis Users in California and Washington
As of January 1, 2024, California Assembly Bill 2188 (AB 2188), Senate Bill 700 (SB 700), and Washington State Senate Bill 5123 (SB 5123) will introduce significant changes for employers in California and Washington. The new legislative measures aim to restrict employers from taking adverse actions against job applicants based on their off-duty use of cannabis or on the results of pre-employment drug tests that find non-psychoactive cannabis metabolites. Employers must adjust their drug testing practices by the new year and may consider adopting oral fluid screening.
Cannabis Use and Discrimination
The core objective of the new laws in California and Washington is to prevent discrimination against lawful users of marijuana. The laws recognize that non-psychoactive cannabis metabolites in drug tests do not indicate impairment but merely past cannabis consumption. By contrast, the psychoactive properties of cannabis make an individual feel high and generally contribute to impairment. The new measures seek to ensure that individuals are not penalized for their off-duty cannabis use while still balancing the need for a safe and productive work environment.
California’s AB 2188 introduces important protections for individuals who engage in off-duty cannabis use. Employers cannot discriminate against employees and job applicants simply because they have used marijuana without a job exempted explicitly by the statute. Additionally, AB 2188 prohibits an employer from discriminating against employees and applicants based on a drug test that measures “non-psychoactive cannabis metabolites”. Employers must accommodate workers who engage in off-duty cannabis use, irrespective of the purpose, subject to the exception of safety-sensitive positions. SB 700 amends California’s Fair Employment and Housing Act to prohibit employers from requesting that job applicants disclose their prior use of cannabis.
Washington’s SB 5123 protects employees from adverse actions based solely on off-duty cannabis use that does not impair job performance. Employers should be cautious not to discriminate against employees or applicants based solely on off-duty cannabis use. While SB 5132 does not explicitly prohibit pre-employment marijuana testing, employers may not require a drug test that measures “non-psychoactive cannabis metabolites” in hair, blood, urine, or bodily fluid. Employers may still require pre-employment drug tests that assess a range of controlled substances, including cannabis, but the results provided to the employer should not report findings associated with past cannabis use.
Testing for Psychoactive Cannabis Metabolites
Although the new laws in California and Washington limit marijuana testing, employers may still be interested in identifying impairment stemming from recent cannabis use or psychoactive cannabis metabolites for specific positions or safety concerns. Oral fluid testing, also known as saliva testing, is gaining popularity due to its ability to detect recent drug use. This method can detect the presence of psychoactive cannabis metabolites shortly after cannabis consumption, usually within a few hours to a few days. It can provide a window of detection that aligns with identifying impairment rather than historical use. Employers may also conduct drug testing after accidents or incidents where drug use may be a factor. Additionally, if there is reasonable suspicion of an employee being impaired on the job, drug testing can be administered to ensure workplace safety. Such tests can detect psychoactive cannabis metabolites if used within a reasonable timeframe after cannabis use.
Practical Considerations for Employers
Employers must review their drug testing programs, consult their legal counsel, and make any necessary changes to comply with the new laws by January 1, 2024. To ensure compliance and maintain a safe and productive workplace, employers may also consider the following:
Conducting thorough job analyses to ensure drug testing is only required for safety-sensitive positions or positions where cannabis use may impair job performance
Developing clear drug testing policies and procedures that comply with the new laws and educate employees about the changes
Training supervisors and managers on how to recognize impairment and conduct reasonable suspicion testing properly
Implementing oral fluid testing as a more reliable alternative to traditional drug testing methods
Re-evaluating and amending employment contracts and agreements to ensure compliance with the new laws and avoid the risk of discrimination lawsuits
Employers must make necessary changes to comply with the new legislation and protect the rights of cannabis users while maintaining safe and productive workplaces.
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