Significant changes are on the horizon for employers in California and Washington. Effective January 1, 2024, new legislative measures, California Assembly Bill 2188 (AB 2188), Senate Bill 700 (SB 700), and Washington State Senate Bill 5123 (SB 5123), will 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. As a result, employers must revise their drug testing practices by the new year and may consider adopting oral fluid screening.
The core aim of the new laws in California and Washington is to prevent discrimination against lawful users of marijuana, recognizing 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 measures in California and Washington seek to ensure that individuals are not penalized for their off-duty cannabis use while balancing the need for a safe and productive work environment.
In California, where medical and recreational marijuana use has been legal for several years, AB 2188 introduces vital protections for individuals who engage in off-duty cannabis use. Specifically, California’s law prevents employers from discriminating against employees and applicants simply because they have used marijuana outside of work unless the individual holds a job exempted explicitly by the statute. AB 2188 also makes it unlawful for an employer to discriminate against employees and applicants based on a drug test that measures “non-psychoactive cannabis metabolites.”
AB 2188 sets forth two primary protections for employers:
- Employers can maintain hiring and employment standards based on scientifically valid pre-employment drug screening that does not detect non-psychoactive cannabis metabolites.
- Employers are allowed to take action if an employee’s drug test reveals non-psychoactive cannabis metabolites, but this action can only be taken if the test demonstrates impairment at work.
California’s law does not permit an employee to possess, be impaired by, or use cannabis on the job, nor does it impact an employer’s rights and obligations to maintain a drug- and alcohol-free workplace, as outlined in Section 11362.45 of the Health and Safety Code, or any other rights and obligations specified by federal law or regulation.
Furthermore, AB 2188 identifies specific exceptions for employers:
- The law does not apply to employees in the building and construction trades.
- It does not apply to applicants or employees hired for positions requiring a federal government background investigation or security clearance per regulations issued by the United States Department of Defense under Part 117 of Title 32 of the Code of Federal Regulations or equivalent regulations applicable to other agencies.
- The law does not override state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations mandating testing as a condition of employment, such as Department of Transportation regulations, for the receipt of federal funding or federal licensing-related benefits, or for entering into a federal contract.
Exceptions aside, employers must cease testing for non-psychoactive THC metabolites and generally accommodate workers who engage in off-duty cannabis use, irrespective of its purpose. California’s law does not provide an express exception for safety-sensitive positions.
Additionally, 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, which legalized recreational marijuana in 2012, enacted SB 5123 to address discrepancies between legal cannabis use and employer practices. This law protects employees from adverse actions based solely on off-duty cannabis use that does not impair job performance.
SB 5123 includes provisions to protect employees from adverse actions solely based on marijuana usage if it occurs outside of work hours and 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 5123 does not explicitly prohibit pre-employment marijuana testing, employers may not require a drug test indicating “non-psychoactive cannabis metabolites” in hair, blood, urine, or bodily fluid. However, employers may require pre-employment drug tests that assess a range of controlled substances, including cannabis, if the results provided to the employer do not report findings associated with past cannabis use.
Expanding on Washington’s protections for employers, nothing in the new law:
- Prohibits an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites;
- Affects the rights or obligations of an employer to maintain a drug and alcohol-free workplace, or any other rights or obligations of an employer required by federal law or regulation; or
- Applies to testing for controlled substances other than pre-employment, such as post-accident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.
Further, Washington’s law does not apply to an applicant seeking:
- A position requiring a federal government background investigation or security clearance;
- A position with a general authority Washington law enforcement agency as defined in RCW 10.93.020;
- A position with a fire department, fire protection district, or regional fire protection service authority;
- A position as a first responder not included under (b) or (c) of this subsection, including a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services;
- A position as a corrections officer with a jail, detention facility, or the Department of Corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities;
- A position in the airline or aerospace industries; or
- A safety-sensitive position for which impairment while working presents a substantial risk of death. The employer must identify such safety-sensitive positions before the applicant applies for employment.
Washington’s law balances the rights of cannabis users and maintains numerous protections for employers, ensuring their ability to maintain safe workplaces and adhere to federal regulations for certain positions.
Testing for Psychoactive Cannabis Metabolites
While 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. Some alternative testing options may provide insights while respecting the new legislation.
Oral fluid testing, also known as saliva testing, is gaining popularity due to its ability to detect recent drug use. This method can identify the presence of psychoactive cannabis metabolites shortly after cannabis consumption, usually within a few hours to a few days. It provides 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
In light of the news in California and Washington and the limitations the new laws impose on drug testing, employers may consider the following practical considerations to help ensure compliance and maintain a safe and productive workplace:
- Policy Review and Revision: Employers must review and revise their drug testing policies to align with the provisions of the new laws. Employers not subject to an exception must remove any pre-employment marijuana testing requirements that test or report non-psychoactive cannabis metabolites and ensure that policies clearly outline the permissible circumstances for drug testing, such as post-accident or suspicion-based situations. Employers may choose to adopt assessing oral fluid. These tests can detect recent cannabis use, aligning with the goal of identifying current impairment rather than past use. As an alternative, employers may eliminate THC testing. This approach eliminates the risk of positive results for off-duty cannabis use, but it may pose risks for the employer.
- Safety-Sensitive Positions: Washington employers should identify safety-sensitive positions within their organization that may require drug testing, including testing for psychoactive cannabis metabolites. Clearly define these positions and their related job duties to ensure appropriate testing and compliance with safety regulations. Make required disclosures in safety-sensitive job postings. In California, no express exemption exists for employer-defined safety-sensitive positions. California employers must adhere to the specific exceptions as described in the statute.
- Education and Communication: Proactively educate employees about the changes brought about by the new laws. Communicate the revised drug testing policies, the reasons behind the changes, and the continued commitment to maintaining a safe work environment. Provide resources for employees to seek clarification or address any concerns.
Employers are urged to review their drug testing programs, consult their legal counsel, and make any necessary changes to comply with the new laws by January 1, 2024.