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California Cannabis Drug Testing and Discrimination

California Cannabis Drug Testing and Discrimination - image of scientist and cannabis leaf

‘Tis the season for employment law changes in California! We hope you are enjoying the start of the holiday season, which for us at Total Package HR means we are digging deep into what’s coming next in the new year.

Join us for Get Ready for 2024 (Employment Law Update Edition)!

Each week we will highlight a new law coming in 2024. We’ll start with the ones that will require the most action and end with the good-to-knows.

If you need assistance with executing any of these new requirements or are unsure if it is applicable to your business, we are here to help!

California has always been a high maintenance state, so let’s chat about the new challenges brought on by this law taking effect in 2024. Off-the-job cannabis use will become a protected category from discrimination for almost all employers. Discrimination means making a decision about hiring, firing, promotion, pay, discipline, and so on based on a protected characteristic/class. To be blunt, if you see an employee over the weekend post on Instagram their 420 escapades, you can’t take any action against them Monday morning.

Do you conduct pre-employment drug testing?

Covered employers will not be able to use drug screen results that test for “nonpsychoactive cannabis metabolites” – this is the part of marijuana that shows when you are not actively high but have used cannabis products recently. However, these drug tests don’t exist yet, and will likely not be ready by the time this law goes into effect. Meaning covered employers should consider removing Marijuana from any drug testing as adverse action based on the presence of such is prohibited come January. Employers can still test (pre-employment, reasonable suspicion, post-injury, and random) staff members, but the test has to specifically be to determine if the employee is currently high or impaired.

Employers who are in the building and construction trades, require federal background checks or security clearance, or federal contractors who are required to drug screen for marijuana are exempt from this portion of the new law.

Additionally, employers will be prohibited from inquiring about previous cannabis use from applicants or employees. Employers who run background checks cannot use any information regarding previous cannabis use from the background check to discriminate against an employee or applicant (take any adverse action such as rescinding offer, termination, refusal to give promotion or salary increase, etc.). This portion of the law applies even if you are listed as an exception to the drug screen regulations.

This new law does not allow employees to use marijuana while at work, or to show up to work under the influence. It also does not require employers to allow on-site marijuana use. It strictly applies to off duty use. Employers still hold the right to maintain a drug-free workplace and take adverse action on the use, sale, purchase or consumption of cannabis while at work or on Company property.

Over the last couple of years, we have noticed more employers are opting to remove THC drug testing all together. This new law (and lack of appropriate testing to comply with it) has solidified this decision and influenced even more employers to remove THC from their panel of drugs to test for.

If you have questions or would like to discuss how this new law will affect your current processes, reach out to your friends at Total Package HR!