California has long been at the forefront of marijuana legalization in the United States. With the passing of AB 2188 in September of last year, employers must now navigate the complexities of this new legislation and its potential impact on their drug testing policies. That’s why it’s so important to thoroughly understand California's marijuana legalization law, AB 2188, and its implications for human resources and safety professionals. Bill Current, founder of the Current Consulting Group, recently presented a webinar for DISA covering everything employers need to know about California’s AB 2188. Here’s a quick and comprehensive summary!
AB 2188: What You Need to Know
AB 2188, which goes into effect in January 2024, does not prohibit drug testing for marijuana in California outright. However, it does introduce some restrictions on the process. The bill is based on three main assumptions:
- Tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana, indicates impairment. However, the presence of THC does not necessarily confirm impairment, nor does its absence disprove it.
- The intent of drug tests is to identify employees who may be impaired. However, employers often conduct drug tests for various reasons, such as compliance with federal and state laws, identifying employees who need help, and enforcing company policies regarding drug use.
- Employers have access to multiple types of tests that don't necessarily rely on identifying the presence of drugs. Fitness-for-duty exams and tests have been around for decades, and alternative drug testing methods have also been available.
AB 2188 and Drug Testing
While AB 2188 does not make drug testing for marijuana illegal, it does stipulate that it’s unlawful for an employer to discriminate against any person in hiring, termination, or any term or condition of employment based on a positive drug test that has found cannabis metabolites.
According to Bill Current, President of Current Consulting Group, “Any drug testing method that solely identifies cannabis metabolites, rather than the parent drug itself, would not be permitted for pre- or post-hire testing for cannabis. For example, urine testing, which identifies cannabis metabolites instead of the parent drug, would not be allowed in California, except under certain conditions, such as in the building and construction trades industry.” However, federal Department of Transportation (DOT) regulations are not included in this prohibition. Employers who are required under federal DOT regulations to test for marijuana must continue to do so, using the only currently approved method - lab-based urine testing.
The Future of Drug Testing in California
Despite the restrictions imposed by AB 2188, Bill Current believes that lab-based oral fluid testing may become a viable option for employers in California. In February last year, the DOT issued a notice of proposed rulemaking for lab-based oral fluid testing, based on guidelines issued by the Substance Abuse and Mental Health Services Administration (SAMHSA). Lab-based oral fluid testing can detect drug use or the presence of the parent drug in a person's system within minutes after they've used the drug and up to a day or two later. Because AB 2188 does not exclude drug testing methods capable of detecting the parent drug, Bill Current believes that California employers may be able to continue testing applicants and employees for marijuana using lab-based oral fluid testing. However, this will likely be challenged in the courts in 2024 until it becomes clearly defined as settled case law.
It is essential to note that AB 2188 states employees are not permitted to possess, be impaired by, or use cannabis on the job. The law aims to protect employers' rights to maintain a drug-free workplace and is not intended to interfere with existing laws that may apply to employers in California.
As marijuana legalization continues to spread across the United States, it’s crucial for employers to stay informed about changes in legislation and adapt their policies accordingly. Employers in California should take the following steps to ensure compliance with AB 2188:
- Review and update drug testing policies: Employers should review their current drug testing policies to ensure they are in compliance with AB 2188. This may involve updating the language used in company policies and employment contracts, as well as reviewing the drug testing methods used.
- Consult with legal counsel: It is essential to consult with legal counsel to ensure compliance with both state and federal laws regarding drug testing. Legal counsel can provide guidance on how to adapt policies and procedures to comply with AB 2188 while maintaining a safe and drug-free workplace.
- Educate employees and supervisors: Employers should ensure that their employees and supervisors are informed about the changes to drug testing policies resulting from AB 2188. This can involve distributing updated policy documents, providing training sessions on new policies, and offering resources for employees who may have questions or concerns.
- Combine drug testing methodologies: By combining drug testing methodologies, such as oral fluid and urinalysis, employers can get a more comprehensive view of drug use by widening the detection window. Oral fluid detects shorter, recent usage that more closely aligns to impairment, while urine shows a longer detection window.
- Encourage open communication: Employers should foster a work environment where employees feel comfortable discussing their concerns regarding drug testing policies. Open communication can help address any misconceptions or fears employees may have about the new legislation.
- Evaluate the need for drug testing: Employers should periodically evaluate the necessity of drug testing in their workplace, considering factors such as the industry, job duties, and safety concerns. Regular evaluations can help ensure that drug testing policies remain relevant and effective in promoting a safe and drug-free work environment.
In conclusion, AB 2188 presents new challenges for California employers in navigating the complexities of marijuana drug testing. By staying informed about legislative changes, consulting with legal counsel, and adapting policies and procedures, employers can maintain a drug-free workplace while complying with California law. As the landscape of marijuana legalization continues to evolve, employers must remain proactive in addressing the implications of these changes on their drug testing policies and workplace safety.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.