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Major Change to Employment Drug Testing Just Came to California

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Two new rules that safeguard cannabis users’ rights at work were recently passed in California. After going into effect on January 1, 2024, these regulations forbid the majority of employers from treating cannabis users unfairly or inquiring about their prior cannabis usage on job applications.

Additionally, they mandate that employers employ a test that is scientifically credible and can only identify recent cannabis use, as opposed to the typical test that can identify cannabis use up to months after intake. It is anticipated that these modifications will lessen the stigma and obstacles that cannabis users must overcome in order to get new employment or maintain their current position.

Background

Cannabis, a plant commonly referred to as marijuana, has psychoactive ingredients that have the power to affect a person’s mood, perception, and thought process. Although cannabis has been used for thousands of years for both medicinal and recreational purposes, it has also been the target of societal and legal restrictions in many nations.

According to the federal Controlled Substances Act, cannabis is categorized as a Schedule I drug in the United States, meaning it has a high potential for abuse and no recognized medicinal value. State and federal law now clash because some states have legalized cannabis for either medical or recreational purposes.

Cannabis was made legal in California in 1996 for medical purposes and in 2016 for recreational purposes. Based on the most recent data available, the California Department of Public Health estimates that over 3.6 million people in the state used cannabis in 2020, making up over 11% of the adult population.

Nevertheless, many cannabis users continue to experience harassment and discrimination at work, even in California, where the drug is legal. Even if employees use cannabis responsibly and outside of work hours, employers still have the right to terminate, fine, or reject applications from cannabis users depending on the results of their drug tests. This may have detrimental effects on the livelihood, health, and general well-being of cannabis users.

New Laws

Legislators in California submitted two proposals in 2022 to address this problem and improve the job rights for cannabis users. Assembly Bill 2188 (AB 2188) and Senate Bill 700 (SB 700) were the two bills that Governor Gavin Newsom signed into law in September 2022. The employment restrictions pertaining to cannabis use were significantly altered by the new laws, which went into effect on January 1, 2024.

AB 2188

Assemblymember Rob Bonta’s AB 2188 altered the California Labor Code to forbid employers from randomly testing employees or job seekers for cannabis usage unless the test is supported by science and the employment qualifies for an exception.

A test that can reliably gauge the degree of impairment or intoxication brought on by cannabis use—rather than only detecting the presence of metabolites—is considered scientifically reliable. The building and construction trades, as well as jobs requiring a security clearance or government background investigation, are among the exceptions.

Additionally, AB 2188 amended the California Fair Employment and Housing Act to forbid employers from terminating, penalizing, or treating applicants unfairly due to their use of cannabis outside of the workplace, unless the employer can demonstrate that the worker’s performance at work has been impaired or will be impaired by the use of cannabis. Unless the position is exempt from the aforementioned rules, the law forbids employers from inquiring about prior cannabis use during job interviews or on job applications.

SB 700

The California Health and Safety Code was amended by Senator Scott Wiener’s SB 700, which forbade employers from discriminating against workers or job applicants who meet the requirements of the Compassionate Use Act of 1996, which permits the use of cannabis for medical purposes with a doctor’s recommendation.

The Adult Use of Marijuana Act of 2016, which permits adults 21 years of age or older to use cannabis recreationally, also forbids employers from discriminating against current workers or job candidates who use the drug for medical purposes. Posts covered by the exceptions listed in AB 2188 are exempt from the law.

Implications

It is anticipated that the new rules will have a major impact on Californian firms as well as employees. Employers must update their drug testing procedures and policies in order to comply with the new regulations and steer clear of any legal action.

Employers must make sure that they employ a scientifically reliable test for cannabis usage and that, absent a justifiable business purpose, they should not discriminate against cannabis users based on test findings or prior cannabis use. Unless doing so would put an unreasonable burden on the business, employers must also respect the privacy and medical secrecy of cannabis users and make reasonable accommodations for people who use the drug for medical purposes.

Because of the rules, workers and job seekers are now more protected and free to consume cannabis outside of work and in a responsible manner without worrying about losing their jobs or not getting hired. In addition, those who use cannabis and experience harassment or discrimination at work because to their use of the drug can speak up for themselves and pursue legal action.

The regulations do not, however, grant cannabis users unlimited permission to consume cannabis while working, carrying out their job responsibilities, or operating machinery while stoned or impaired. Employers’ policies and expectations must still be followed by cannabis users, and they must carry out their duties in a safe and efficient manner.

Conclusion

Two new regulations that safeguard cannabis users’ rights at work have significantly altered California’s employment rules pertaining to cannabis usage. These laws mandate that employers use a scientifically valid test that only detects recent cannabis use, rather than the common test that can detect cannabis months after consumption, and they prohibit the majority of employers from discriminating against cannabis users or inquiring about their past cannabis use on job applications. These adjustments could lessen the stigma and obstacles faced by cannabis users seeking new employment or want to hold onto their present position, as well as foster a more equitable and welcoming work environment in California.

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