October 27th, 2022 | Heather Horn, VP of Drug & Health Screening Fulfillment
California Passes Legislation Bill 2188 Protecting Employees’ Off-Duty Marijuana Use
Since California voters passed the first state law legalizing medical marijuana in 1996, the number of states decriminalizing or legalizing medical and recreational marijuana use has been steadily growing. While marijuana remains federally prohibited, the changing legal landscape at both the state and local level leaves employers scrambling to understand how to keep their drug-free workplace program in compliance while still effectively protecting the safety and productivity of their employees.
California’s Legislative Bill 2188
Recently, the legal focus has changed from marijuana decriminalization to the protection of an employee’s right to use marijuana legally away from the workplace. With the September 2022 approval of Legislative Bill 2188, California once again sets the pace for marijuana legislation. The bill takes effect on Monday, January 1, 2024, and makes it unlawful for an employer to discriminate against an employee based on the person’s use of marijuana off the job. When enacted, the bill requires employers to test for THC (tetrahydrocannabinol) to establish current impairment.
In short, California Legislative Bill 2188:
- Takes effect on Monday, January 1, 2024
- Makes it unlawful for an employer to discriminate against an individual in hiring, termination, or in conditions of employment based on the person’s legal use of marijuana off the job
- Requires employers to test for THC (tetrahydrocannabinol), the psychoactive ingredient in marijuana, rather than for a cannabis metabolite, to establish current, on-the-job impairment
- Does not permit an employee to possess, be impaired by, or use marijuana on the job
- Exempts applicants and employees in the building and construction trades and candidates and employees requiring federal background investigations
- Does not change federally mandated testing, including the Department of Transportation (DOT) testing requirements for regulated modes of transportation
Options for THC Testing
After an individual consumes marijuana, THC is metabolized by the body and stored in the body as a cannabis metabolite. Traditional marijuana drug tests are designed to detect non-psychoactive cannabis metabolites. However, the presence of cannabis metabolites detected by these tests does not necessarily indicate current impairment and because of this, does not align with California’s 2024 legislative requirements to establish recent use.
The challenge for employers is that labs do not currently have a reliable, cost-effective way to conduct testing for THC as outlined in California’s Legislative Bill 2188. Sterling hopes to be able to offer various scalable methods of testing for THC by the time the law goes into effect January 2024. We will provide our clients with updates as new tests are available.
As the January 2024 enactment approaches, Sterling also offers numerous drug panel options that exclude marijuana so that employers with employees in California can easily remove marijuana tests that do not meet the requirement of the law from their usual drug testing panels.
As marijuana laws continue to evolve, it is important to review your drug testing policy regularly with qualified legal counsel to check its alignment with the current regulations that impact your business. Confirm that your policy is clear in its description of prohibited behaviors, the definition of when, how and why drug testing will occur, what drugs will be included in the testing, and what consequences follow a policy violation.
Now is also a good time to educate both your employees and supervisors about your company drug-free workplace policy to develop a good understanding of company policy expectations and dispel any possible misconceptions around how recent legislation has changed employee rights. Further, make certain that supervisors are properly and regularly trained to recognize the signs and symptoms of possible impairment, and what actions they should take when impairment is suspected.
Maintaining a safe and productive work environment is critical to the success of your business. Sterling offers a robust selection of Drug & Health Screening solutions to help your company stay compliant while you simultaneously protect the safety of your people. If you have questions or want to get in touch with our Drug & Health Screening experts, contact us today!
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.