As of January 1, 2024, California will introduce the AB 2188 update. This legislative update significantly alters the landscape for employers, shaping how they approach hiring, termination, and other critical employment decisions based on cannabis use. Jennifer Mora, Senior Counsel at Seyfarth Shaw LLP, recently discussed these updates in a recent webinar presentation for DISA, followed by a Q&A session offering further insights into the intricacies of AB 2188 and the challenges it presents for employers navigating California’s evolving legal framework. Here are some of the most commonly asked questions regarding AB 2188.
More employees are using CBD, are there any special issues to consider?
Absolutely, the surge in CBD use among employees presents unique challenges for employers. The primary hurdle is the lack of FDA regulation on CBD products. Despite being marketed as THC-free, there's no guarantee, leading to potential positive marijuana tests. In such cases, it becomes an employer's responsibility to assess the situation and decide whether to trust the employee's explanation. Employee education on CBD is crucial to foster understanding.
What about government contractors? Are they exempt from all of this?
Government contractors fall under the Drug-Free Workplace Act, which mandates a policy prohibiting on-the-job use and possession. Notably, this act doesn't delve into testing specifics. Employers can align with both the Drug-Free Workplace Act and state laws since the former doesn't regulate off-duty conduct. Thus, government contractors are not exempt but must adhere to specific workplace policies.
Do we need to account for any of these issues in our drug policy?
Approximately 10 jurisdictions impose drug testing policy requirements. Crafting a clear policy is crucial, especially if your stance on cannabis is firm. Explicitly mentioning "illegal drugs" while defining the term ensures inclusivity, covering marijuana even in legal states. Failing to specify might create ambiguity, possibly undermining policy enforcement. Deciding what your company tolerates is pivotal in policy formulation.
How do companies with multiple states handle pre-employment testing?
Handling pre-employment testing in multistate operations is intricate. State-specific laws on drug policies and marijuana legality are pivotal considerations. Some companies adopt a uniform approach, removing pre-employment testing altogether. This trend, exemplified by giants like Amazon, aims for a streamlined hiring process. However, for safety-focused industries, navigating state laws and retaining pre-employment testing, often reserved for reasonable suspicion, remains a viable strategy. Ultimately, aligning your approach with organizational goals is key, whether it be recruitment ease or prioritizing workplace safety.
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 North America and Europe, 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.