Major change to employment drug testing just came to California
Cannabis users who are looking for a new job in California can breathe a sigh of relief.
As of Jan. 1, it’s illegal for most California employers to discriminate against cannabis users or even ask about past cannabis use on job applications, thanks to a pair of new laws that increase workplace protections for cannabis users.
Assembly Bill 2188 includes a major change to how employers can conduct drug tests. Companies are now blocked from using a common drug testing method that detects cannabis months after someone uses the drug. Instead, employers must use a “scientifically valid” test, according to the law, that only detects the drug shortly after it’s used.
The change means that people who use cannabis recreationally or medicinally, but not in a way that affects them at work, will see greater protections. The updated test should only detect cannabis in a person’s system if it was recently used, but not so far back that it will pick up a cannabis use from weeks or months ago, the way the previous test would. That will likely make it easier for employers to hire workers and reduce discrimination against people who use cannabis, a drug that has been found to have a wide range of medical benefits.
In addition to AB 2188, Senate Bill 700 also specifically forbids employers from using previous cannabis use as a reason for denying a job applicant, or to penalize an existing employee. However, the law does not protect all workers in the state. It does not apply to people who work in the building and construction trades, or anyone working a job that requires a federal background investigation or security clearance.
Sean Andrade, a Los Angeles lawyer who specializes in employment matters, said in an email to SFGATE that despite these exemptions, the law should “impact most California employers.”
The new law is already having an effect in at least one surprising place: Police applicants in California will no longer be asked if they have used cannabis in the past, according to a December notice from the California Commission on Peace Officer Standards and Training, which establishes hiring standards for California police officers. The commission said the update was specifically in response to the recently passed law.
Employers can still test for cannabis prior to hiring and after an employee has been hired, but they must now only use “scientifically valid” tests that measure THC, the most common chemical in cannabis. Historically, most drug tests measured THC metabolites, which are byproducts of cannabis that remain in blood “significantly longer” than THC itself, according to the Centers for Disease Control and Prevention.
Bernard Alexander, a Los Angeles attorney, said in an email to SFGATE that testing for only THC will increase the accuracy of drug testing in California.
“Most of the older tests detect the non-psychoactive metabolites, which can stay in a person’s system for weeks. So, a worker can test positive when they’re not high or impaired at all,” Bernard said in an email to SFGATE. “The solution should be simple: Employers who drug test just have to use this newer testing technology that just tests for THC and not the non-psychoactive metabolites.”
While the new law makes it harder for employers to punish people for using cannabis at home, companies can still ban workers from using cannabis on the job, according to Andrade.
“This law makes that clear that employees cannot go to work impaired,” Andrade said in an email to SFGATE. It “does not protect an employee who possesses or uses cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace,” he continued.
