I’ve heard California law protects employees who use cannabis. Is it true that we can no longer test for, or discipline, an employee who tests positive for cannabis at the workplace?
Although it is true that in the past two years California has enacted laws that change how employers may address cannabis use in the workplace, employers still are permitted to take appropriate steps to enforce a drug-free workplace policy.
Those steps include testing applicants and employees, and disciplining employees for possession of, use of or impairment from any drugs, including cannabis.
Offsite, After-Hours Cannabis Use
Enacted in 2022 and effective on January 1, 2024, AB 2188 added a new protected class to the Fair Employment and Housing Act (FEHA) prohibiting employers from refusing to hire, disciplining, terminating or otherwise discriminating against an applicant or employee simply because they use cannabis offsite and away from the workplace. The new law makes clear, however, that employers may continue to prohibit possession of, or impairment by, cannabis while on the job.
In basic terms, this means employers may continue to enforce their drug-free workplace policies as it pertains to cannabis, with a new wrinkle. Drug-free policies generally call for drug testing employees as permitted under the law.
In most cases in California, that means conducting drug tests upon a reasonable suspicion that an employee is impaired at the worksite after observing objective signs such as odors emanating from the employee, slurred speech, lethargy, or bloodshot eyes.
AB 2188 does not prohibit reasonable suspicion testing for cannabis use; however, it does change the type of testing to which employers may subject their employees.
Under the new law, employers may no longer utilize testing that screens for nonpsychoactive cannabis metabolites. In this view, it generally is understood that employers must utilize saliva tests for active impairment since the chemicals causing impairment have not been metabolized in the saliva.
This testing restriction extends to preemployment drug testing as well. Similar to employee drug testing, AB 2188 does not alter an employer’s ability to require that an applicant successfully complete a preemployment drug screening for cannabis. Again, however, the employer is limited to utilizing only testing that does not screen for nonpsychoactive cannabis metabolites.
Because AB 2188 does not expressly authorize any form of testing, employers are strongly encouraged to consult legal counsel about the best course of action for cannabis screening.
Preemployment Cannabis Inquiries
As a follow-up to AB 2188, in 2023 California enacted SB 700, also effective on January 1, 2024, to prohibit preemployment inquiries into an applicant’s prior cannabis use.
For example, employers may not request information about cannabis use on a job application or in an interview. Further, unless otherwise permitted by law, an employer may not consider prior cannabis use obtained from a criminal history report.
Exceptions
Both AB 2188 and SB 700 are subject to a few exceptions. Employers who are in the building and construction trades are exempted from both laws.
Unfortunately, there is no definition whatsoever as to what it means to be in the “building and construction trades.” Employers who believe they may fall into that vague and broad category are encouraged to consult with counsel before assuming that the exception applies to their organization.
The second exception applies to applicants or employees hired for positions that required a federal government background investigation or security clearance in accordance with U.S. Department of Defense regulations or other equivalent regulations applicable to other federal agencies.
Lastly, the law states it does not preempt, or override, other state and federal laws that require applicants or employees to be tested for controlled substances.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
