Are California employers really barred from testing for marijuana use? Your questions answered.
Recreational adult-use marijuana has been legal in California for years now, but many employers have continued to test for employee usage of the drug as a condition of employment.
Gov. Gavin Newsom signed Assembly Bill 2188 into law Sunday, effectively barring most employers from using the most common types of testing for cannabis. Those tests can confirm only that a person has consumed the drug within the past few weeks — and not whether they are actively intoxicated by it.
The bill was championed by marijuana advocacy group California NORML.
“Urine tests are a highly offensive invasion of workers’ personal bodily privacy,” said Cal NORML director Dale Gieringer in a statement. “They are too frequently abused to discriminate against unpopular workers and minorities. Workers should have the same right to use cannabis as to use other legal substances off the job.”
What does the law say?
AB 2188 makes it unlawful for an employer to discriminate against a person who uses cannabis in their off hours, away from work when making decisions about hiring, firing or conditions of employment. It prohibits employers from using hair, blood, urine or other bodily fluids to test only non-psychoactive cannabis metabolites — the stuff that can linger in your system for weeks — to take disciplinary action.
Who does the law apply to?
The law applies to most professions.
Notable exceptions are carved out for members of the building and construction trades along with those who need a federal background or security clearance.
When does the law go into effect?
The law goes into effect on Jan. 1, 2024.
Does that mean I can’t be drug tested at all?
No. Employers can still test employees for active cannabis use. They simply are barred from using the most common type of tests, which screen for non-psychoactive cannabis metabolites that can remain in a person’s system long after they have consumed cannabis, to take action against that employee.
Tests which identify the presence of THC — the stuff that actually gets you high — are still allowed. Impairment tests, which measure an employee’s performance in a particular moment against their general performance, also are allowed.
Employers can also test for other drugs.
If my boss thinks I came to work high, can I be tested?
The answer is yes, but, as Kevin Kish, director of the California Civil Rights Department, puts it. Employers are encouraged to maintain a drug-and alcohol-free workplace and a testing regimen can be a part of that policy. But that policy must be applied fairly.
Kish said his concern is with employers who enforce that policy unevenly, such as only drug testing Black employees.
“I just think employers should be cautioned about testing willy nilly without a policy in place,” Kish said.
But while employers can test for cannabis use as part of an established company policy, the new law prohibits them from using tests that rely on non-psychoactive cannabis metabolites to take action against that employee.
What happens if I crash the company car?
Again, you can be tested for cannabis use. And, again, that test must be applied fairly, Kish said. The new law simply prohibits employers from taking action against employees using tests for do not show active cannabis impairment.
This story was originally published September 23, 2022 at 5:00 AM with the headline "Are California employers really barred from testing for marijuana use? Your questions answered.."