California law will soon bar most employers from penalizing or discriminating against applicants or workers who use cannabis off the clock and away from the workplace. Drug tests commonly used by employers now to detect the presence of cannabis molecules will not be usable to terminate a worker, restrict hiring or otherwise penalize a worker when the law takes effect Jan. 1, 2024, because these tests do not indicate that a worker is impaired on the job.
Dental practice owners and other employers in California who have a workplace drug test policy will need to review and likely update the policy before the law takes effect.
The new law does not permit workers to use, possess or be impaired by cannabis while on the job and does not alter an employer’s right and obligation to maintain a drug-free workplace.
New anti-discrimination protections for marijuana users
AB 2188, sponsored by Assemblymember Bill Quirk (D-Hayward) and signed in September by Gov. Gavin Newsom, amends the California Fair Employment and Housing Act by adding anti-discrimination protections for marijuana users to existing employment protections based on an individual’s medical disability, race, age, physical disability and other protected statuses.
In a signing message on several cannabis bills, the governor said the aim is to address impacts from past prohibition of cannabis and to “fully realize cannabis legalization in communities across California.” Cannabis became legal in California in 2016 through a ballot initiative.
Specifically, AB 2188 makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person” if the discrimination is based upon any of the following:
- The person’s use of cannabis off the job and away from the practice.
- An employer-required drug screening test has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
Employers should review, update drug test policies
With required compliance not starting until January 2024, California employers who have a workplace drug test policy have time to determine if their current drug test process relies on detecting nonpsychoactive cannabis metabolites for the purpose of hiring, firing or setting a condition of employment or discipline. If it does, the testing policy is not compliant with the new law and the employer will need to update their drug test policy. Cannabis metabolites, as the law states, do not indicate an individual’s impairment, only that an individual has consumed cannabis in the last few weeks.
The law does not bar employers from using impairment tests or tests that identify tetrahydrocannabinol (THC), the chemical compound in cannabis that can cause psychoactive effects, as part of their workplace drug test policy. Employers who have or want to maintain a drug test policy should research compliant drug tests and implement one prior to Jan. 1, 2024.
The new law’s protections do not apply to applicants or employees who are required to be tested, as a condition of employment, prior to receiving federal funding or licensing-related benefits or entering into a federal contract. Employees subject to federal background investigations are also excluded from the law.
CDA does not include a drug test policy in its Sample Employee Manual for members. Instead, CDA recommends that practice owners seek legal counsel to develop and implement or revise a drug test policy specifically for their practice.