Cannabis in the Workplace
Cannabis in the Workplace
Effect January 1, 2024, California employers cannot “discriminate” against employees based on the employee’s use of cannabis off-the-clock and away from the workplace. While off-duty use of cannabis is legally protected, the new law does allow employers to fire or suspend workers for possessing, using, or being impaired by marijuana while at work. The law also still allows employers who require drug screening as a condition of employment to use these tests, as long as the tests do not screen for non-psychoactive cannabis metabolites.
Although currently there is no test to assess “impairment,” employers have 15 months to figure it out. Standard drug tests detect metabolites in urine and hair, the result of the breakdown of tetrahydrocannabinol (“THC”) that can stay in one’s system for several days, or in some cases, weeks. Currently a saliva test can pick up THC ingested within 24 to 36 hours, but it still does not provide a “definitive” answer on whether an employee is under the influence at the time of the test. Tech companies are rushing to develop tools that can shrink that window to just a few hours.
The new law provides for exceptions for people working in building and construction trades, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces, some education jobs, as well as people applying for or working in roles that require a federal background clearance. It’s provisions also exclude occupations that are required by federal or state laws to be tested for controlled substances (e.g. truck drivers, regulated by the U.S Department of Transportation.
If an employer requires a worker to take a test, the new law otherwise will prevent employers from discrimination against an applicant or employee who fails a drug test that may detect non-psychoactive cannabis metabolites in their urine, blood, hair, or bodily fluids unless the test can accurately indicate a level of intoxication from marijuana, like they do for alcohol. Even with a positive test result, it could be challenging for employers to determine just how seriously they should look at a person’s conduct. Employers should start implementing adequate policies now before the January 1, 2024, deadline. Without proper policies, employers may not even be able to test employees due to privacy concerns.
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