California to Protect Off-Work Use of Marijuana, Set Testing Parameters for Measuring Workplace Impairment – Littler Mendelson PC

Last month, the California Legislature voted to join what it refers to as “the movement to legalize and regulate the non-medical use of cannabis” across the United States, including offering employment protection for such use. California’s AB 2188, signed into law by Governor Newsom on September 18, 2022, amends the California Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate against an applicant or employee who has engaged in the lawful use of marijuana outside of work. The law takes effect on January 1, 2024.
The use of marijuana for medical purposes has been legal in California since 1996 pursuant to Proposition 215 (Compassionate Use Act), and recreational marijuana has been legal since 2016 pursuant to Proposition 64. However, neither of those propositions addressed employment or created employment protections for marijuana users. Further, the California Supreme Court ruled in 2008 that the FEHA did not require employers to accommodate the use of medical marijuana, in part because marijuana was, and remains, a controlled substance prohibited by federal law. When the new law takes effect in 2024, with limited exceptions, California employers will have to accommodate workers who engage in the off-duty use of marijuana, regardless of whether the use is for medical purposes.
The law contains two general and related protections. First, the law makes it unlawful for employers to discriminate against employees and applicants simply because they have engaged in off-the-job marijuana use, unless the individual seeks or holds one of the exempted roles. Second, the law makes it unlawful for an employer to discriminate against employees and applicants on the basis of a drug test that measures only “nonpsychoactive cannabis metabolites.” 
The premise of the second protection is that although the use of employment-related drug tests is intended to determine if an employee is impaired, “most” tests for marijuana show only the presence of recently metabolized cannabis rather than active tetrahydrocannabinol (THC), the chemical component in marijuana that has psychoactive properties. Thus, according to the California Legislature, most tests for marijuana show only that an “individual has consumed cannabis in the last few weeks” rather than present impairment. Accordingly, the law prohibits employers from relying on tests that measure only cannabis metabolites rather than active THC, because cannabis metabolites would not demonstrate that the individual was impaired at the time of the test. The new law does not prohibit drug testing of applicants and employees for marijuana or other illegal drugs but attempts to regulate the types of tests that may be used to detect marijuana use. If an employee or an applicant tests positive on a scientifically valid test that “do[es] not rely on the presence of nonpsychoactive cannabis metabolites,” however, the law will not prohibit employers from “discriminating in hiring, or any term or condition of employment” based on the outcome of those tests.
Certain employers, including those in the building trades, and positions subject to federal testing or federal government background investigations or security clearances, will be exempt from the law. The law does not contain a general safety exception and does not address, for example, employees who drive regularly as part of their job duties or who otherwise perform, or will perform if hired, safety-sensitive functions. However, the law reinforces the right of all employers to prohibit the use and possession of cannabis and cannabis products only on the job, and to discipline workers who are impaired by cannabis at work, or to take other steps to ensure a drug-free workplace. 
What Tests Can Employers Use to Measure Active Marijuana Metabolites, or Impairment Generally?
The key question posed by the new legislation is what sorts of tests may an employer rely upon to make cannabis-related employment decisions. Urine and hair specimens measure cannabis that is not metabolically active, since hair tests measure only the use of cannabis that occurred some weeks or months earlier and that was incorporated into the hair follicle at the time of use, and urine tests measure THC that has been metabolized and that is being excreted. In contrast, saliva/oral fluids and blood tests may measure THC molecules active in the individual’s system at the time of the test, if designed and manufactured to measure only the psychoactive THC components in the sample. 
The law also suggests that employers might be able to rely on “impairment tests, which measure an individual employee against their own baseline performance,” to determine if workers are impaired. The law does not clarify what “impairment tests” the California legislature was considering, or whether such tests in fact exist, are validated as effective, and are appropriate for use in an employment setting. Possibly the legislature was referring to tests that measure dexterity or reasoning ability, periodically compared against an individual’s baseline performance, but impairment tests of this sort are not widely available or used as employment tools at this time. Moreover, in order to successfully implement and rely upon such tests, employers would need to take steps to validate the effectiveness of the tests in measuring impairment as well as ensure that the tests did not have an adverse impact on individuals with disabilities or other protected characteristics. At least for now, it seems likely that most employers seeking to ensure workers are not impaired by the use of cannabis at work will continue to rely on tests of employee’s and applicant’s body fluids.
Preparing for Changes in California Law
Employers have 15 months to prepare to comply with the new law limiting adverse employment actions based on off-work marijuana use. In preparing to comply, employers should consider whether to continue testing applicants and employees for marijuana, including by assessing the risks of not testing for marijuana or of utilizing the other non-specified “impairment tests” referenced in the law, since it may be more difficult to address performance and impairment concerns once an individual is hired. Employers that will continue testing for marijuana, even if only when they have reason to suspect workplace impairment, should consult with their testing administrators and/or laboratories to ensure appropriate test specimens and test methodologies are used and can be relied upon to detect the presence of active THC rather than nonpsychoactive cannabis metabolites. Communicating expectations and a description of test methods used to test workers may further help smooth the process; otherwise, employers can expect that even valid tests for active THC will be subject to challenge by applicants and employees who are subject to adverse action for a positive marijuana result. Indeed, the California Legislature estimates that the Department of Fair Employment and Housing, the administrative agency responsible for enforcing the law, would require an additional $3.1 million annually simply to administer complaints charging violations of the new law. To prepare, employers should also review and update drug-testing policies to be consistent with the law, and to affirm that the use, possession of, or impairment by marijuana in the workplace is prohibited.
Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

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