Understanding California’s New Cannabis Testing Laws: What Employees Need to Know

Changes in employment laws can significantly impact both employees and employers. Staying informed about new legislation is crucial for protecting workers’ rights. Let us take a closer look at recent changes in California law that may affect employees and require employers to update their workplace policies.

As of January 1 this year, substantial changes have taken effect regarding employment drug testing procedures in the state. Employers now face new restrictions on their ability to take negative action against potential hires based on their cannabis use outside of work. They also cannot take adverse measures against candidates based on the results of drug tests detecting non-psychoactive cannabis metabolites.

Non-psychoactive cannabis metabolites, found in standard drug tests, are indications of past consumption rather than current impairment. In contrast, psychoactive metabolites are responsible for the “high” sensation and impairment.

Gov. Gavin Newsom signed Assembly Bill 2188 (AB 2188) and Senate Bill 700 (SB 700) in 2022. The laws bar employers from relying on hair or urine test results for marijuana to make employment decisions such as hiring, firing or disciplining workers. These types of tests can show traces of cannabis from days or weeks prior. However, the bill does not prohibit employers from using blood tests and other means to check whether a worker is impaired.

AB 2188 and SB 700 aim to prevent employers from discriminating against lawful cannabis users. These measures hope to stop workers from being disciplined for cannabis use outside of work while maintaining workplace safety and productivity.

Both recreational and medical marijuana have been legal in California for several years. In such circumstances, AB 2188 provides crucial protections for off-duty cannabis users. It prohibits employers from discriminating against workers and job seekers for their marijuana use outside of work, with some exceptions. In the past, standard drug tests have led to unjust consequences for job applicants and workers, with positive test results often being used to deny employment or justify termination.

Despite these changes, California law does not allow workers to use, possess or be impaired by cannabis on the job. It also does not affect an employer’s rights and duty to ensure the workplace is free from alcohol or drugs. Employers can take action if an employee’s drug test shows psychoactive cannabis metabolites that indicate impairment at work.

AB 2188 does not apply to workers in the construction industry. It also excludes applicants or workers hired for jobs requiring a federal background check or security clearance. Additionally, the bill does not disregard federal or state laws requiring drug testing for controlled substances, such as Department of Transportation policies.

The second law, SB 700, updates California’s Fair Employment and Housing Act, prohibiting employers from asking candidates to share their prior cannabis use. Additionally, employers cannot discriminate against applicants who are found to have past use of cannabis linked to a criminal history, unless otherwise allowed by law.

Although these laws limit marijuana testing, employers may still seek to identify workplace impairment from cannabis use, particularly for safety-sensitive positions. Employers may also carry out drug testing after accidents where drug use may have played a role. Reasonable suspicion of a worker being impaired at work can also warrant drug testing to ensure workplace safety.

Employers are responsible for reviewing and revising their drug testing policies to ensure they comply with the new laws. They must remove pre-employment marijuana testing requirements that detect non-psychoactive cannabis metabolites and clearly outline permissible drug testing circumstances, such as after a workplace accident or due to reasonable suspicion.

At McCormack Law Firm, our skilled San Francisco employment lawyers strive to keep up with the latest developments in California labor laws. We leverage our knowledge of the law and wealth of experience to help workers resolve workplace disputes. Our law firm handles a wide range of cases, including discrimination, harassment, wrongful termination, wage theft and more. Contact us today for a free initial consultation to learn more.