Safety is a big priority in the workplace, which is why many employers require their employees to submit to drug screenings either before they’re hired or during the course of their employment.
As of Jan. 1, 2024, however, new legislation goes into effect in California that will drastically alter the legal rights of many employers and employees regarding the use of cannabis and the testing for the drug.
AB 2188 and SB 700 create the key changes
Between the Compassionate Use Act and Prop 64, cannabis use is broadly legal in California, making the use of the drug during an employee’s off hours akin to having a beer.
With that in mind, Assembly Bill 2188 amends California’s Fair Employment and Housing Act (FEHA), making it illegal (with some exceptions) for employers to discriminate against workers or take adverse employment action based on either:
- The use of cannabis on the employee’s own time, away from the workplace
- An employer-required drug screening that shows non-psychoactive cannabis metabolites in the employee’s urine, blood, hair or other bodily fluids.
In addition, Senate Bill 700 modified the law even further, making it unlawful for an employer to ask job applicants about whether they’ve used cannabis products in the past.
Employees still cannot be impaired by cannabis at work
It’s important to note that employers are not entirely without recourse. The law still does not permit an employee to have cannabis products in their possession at work when it is forbidden, nor may they use cannabis on the job or work while impaired by the drug. Beginning January 1, 2024, employers may only test for the presence of psychoactive metabolites of tetrahydrocannabinol (THC) at the preemployment stage or for current employees. Exceptions exist for the building and construction trades and for employers who are required to test pursuant to federal regulations or contracts.
Navigating the constantly changing legal landscape in this area can be challenging for employers. Legal guidance can make it easier not to run afoul of the new laws.