Weed at Work: Update on Cannabis in California

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, presented a webinar for DISA Global Solutions to address these updates. Join us as we discuss the details of AB 2188, unravel its core provisions, explore exceptions, and address the considerable challenges it poses for employers navigating California’s evolving legal framework.

Unlawful discrimination against individuals based on their off-the-job cannabis use is now prohibited for most employers in California. This includes hiring decisions, terminations, and other employment-related judgments. However, there are a few exceptions:

Scientifically Valid Preemployment Drug Screening: Employers can still discriminate based on preemployment drug screenings that scientifically identify psychoactive cannabis metabolites. This exemption doesn't apply to non-psychoactive cannabis metabolites.

Exemptions: Certain categories, such as employees in building and construction trades, positions requiring federal background checks, and individuals under state or federal testing regulations, are exempt.

The legislation requires covered employers to reconsider their drug testing policies by January 1, 2024. Employers can add methodologies like oral fluids for job applicants, though exercising caution with existing employees due to potential legal complexities.

Recent amendments to the law underscore the protection of individuals from discrimination based on past marijuana use. This amendment addresses historical behaviors by emphasizing the importance of assessing current qualifications and skills rather than previous cannabis consumption.

A positive cannabis test result does not necessarily indicate impairment, as cannabis can linger in the system. Employers need to tread carefully, especially in regions with emerging cannabis laws like New York, New Jersey, New York City, Philadelphia, Nevada, Washington, D.C., California, and Washington (from 2024 when this applies to both California and Washington). For DOT-regulated positions, employers must not dismiss positive cannabis tests even for medical use. The DOT's stance on medical marijuana, classified under Schedule I of the Controlled Substances Act, remains stringent.

Safety concerns in the workplace necessitate the development of strong reasonable suspicion programs. Marijuana and other drug use in the workplace can pose several challenges and risks, including accidents/injuries, performance issues, theft, and increased liability. It’s vital to train managers and supervisors to identify behaviors associated with drug or alcohol use, ensuring that observations are well-documented. Here's what you need to do if you’re faced with a situation where the safety is compromised:

• Train your managers and supervisors: Provide comprehensive training on recognizing signs of drug or alcohol use.
• Clear observations: Encourage clear observations of worker behavior, appearance, speech, or body odor associated with substance use.
• Identify patterns: Educate supervisors to identify patterns of abnormal or erratic behavior, observe direct signs of drug use, and recognize physical symptoms.
• Reliable information: Stress the importance of information provided by reliable and credible sources, cautioning against hearsay.

In the event an employee is suspected of using or possessing drugs at work, employers should follow a structured approach:

• Document, Document, Document: Document observed behavior, including all relevant circumstances, information, and facts related to job performance or erratic behavior.

• Same-day testing: Have the worker undergo drug testing as soon as possible, ideally on the same day.

This approach not only ensures the safety of the workplace but also provides clear guidelines for addressing situations where drug or alcohol use is suspected. It aligns with legal compliance, prioritizes safety, and emphasizes the importance of maintaining a secure working environment.

The changing landscape of cannabis laws reflects shifting cultural attitudes. According to a Gallup poll, 68% of Americans support marijuana legalization. However, employers face challenges in balancing cultural shifts with safety considerations.

While there's no duty under the Americans with Disabilities Act to accommodate cannabis use, state courts, as seen in cases like Barbuto v. Advantage Sales and Marketing (MA), Noffsinger v. SSC Niantic Operating Co., LLC (CT), and Wild v. Carriage Funeral Holdings, Inc. (NJ), are sometimes ruling differently.

Employers may face requests for accommodation related to cannabis use. The process involves an interactive dialogue, where information is exchanged between the employer and the provider, and reasonable accommodations are considered. This may involve deviating from the company's standard drug policy as a form of accommodation. Some employers don’t want to have to deal with having to go through the interactive process because it’s not required in the Americans with Disabilities Act. Due to most states having a disability discrimination statute, we’re seeing courts in many states starting to require some form of dialogue. This causes many teams to come to the decision that it’s not worth it and get rid of marijuana testing all together.

As cannabis laws continue to spread like wildfire, employers must remain agile in adapting their policies and practices. Navigating the complex intersection of legal compliance, workplace safety, and cultural shifts is paramount. In this evolving industry, staying informed and seeking expert advice, such as from DISA Global Solutions, becomes crucial for employers aiming to strike the right balance between compliance and effective pre-employment screening.

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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 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.