On September 19, 2022, Governor Gavin Newsom signed into law a number of marijuana-related bills, including legislation protecting employees from workplace discrimination. Specifically, Assembly Bill 2188 (the “Law”), addresses workplace discrimination on the basis of legal cannabis use. The Law takes effect on January 1, 2024 and can be found in its entirety here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2188
The Law will prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, if the discrimination is based on:
- 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 preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. (emphasis added)
- 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.
What this means is that beginning in 2024 it will become unlawful for an employer to discriminate based upon a person’s use of cannabis off the job and away from the workplace in California. However, unlike other states with similar laws, employers may still rely on cannabis testing in employment decisions provided that the testing detects the active presence of THC in the employee’s or prospective employee’s system instead of cannabis metabolite remnants. First Advantage’s Chief MRO believes complying with this law will require a shift in testing from urine to oral fluid.
In more technical detail, the current most common laboratory industry testing for marijuana uses urine for the detection of 11-Nor-9-carboxy-Δ9-tetrahydrocannabinol, a non-psychoactive metabolite of the primary psychoactive marijuana ingredient tetrahydrocannabinol (THC). These tests delineate that psychoactive marijuana has been used but does not delineate the current presence of psychoactive marijuana compounds. Per the language above, this Law will require testing for currently psychoactive ingredients from marijuana for a decisional employment impact to be taken. Samples other than urine, such as saliva, do currently test for the presence of THC itself and it is probable that testing in California will shift to accommodate this Law.
Addressing this difference and anticipated shift, the Law further notes:
Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. 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.
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 impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.
The Law does not further define “nonpsychoactive cannabis metabolites” and it is unclear what “alternative tests” are being referred to as “tests that do not rely on the presence of nonpsychoactive cannabis metabolites.” As noted above, the solution is likely to come in the form of oral fluid testing.
There are notable carveouts to Law’s general rule prohibiting discrimination on the basis of cannabis use. First, the Law notes that “[n]othing in this [Law] permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.”
Moreover, the Law does not apply to: 1) an employee in the building and construction trades; or, 2) to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense. Lastly, the Law specifically does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
Given the confusion surrounding the Law generally, testing, and permitted action, it will be important to monitor evolving regulation and testing options this year and in 2023. In the interim, employers should continue to monitor the impacts of this law, as will First Advantage, consult with their legal counsel, and review their drug testing policies to ensure that their practices will comply with the new law by the time it takes effect.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.