What Employers Need to Know About California’s New Marijuana Law

A law that took effect in January prevents California employers from discriminating against employees who use marijuana when they’re not on the job. How will it affect the way you run your business? Read on for details.

Assembly Bill 2188 mandates a change in how employers test for marijuana use among their employees. The law specifies the type of lab tests that companies can use.

The Focus is on Current Impairment

“Technology to test for marijuana impairment has actually advanced quite a bit, so basically employers can now just test for THC — the psychoactive component in cannabis — and that can show impairment,” said Los Angeles-based attorney Bernard Alexander. He explained that older tests flagged samples that contained the other components of cannabis, which don’t affect users’ brains and can stay in the body’s system for weeks, not hours.

The upshot is that while previously used tests identified marijuana users, the new tests will only register positive for employees who are currently impaired by THC.

California Gov. Gavin Newsom signed AB 2188 into law in September 2022, but it came with language that delayed its implementation until Jan. 1 of this year. The California chapter of the National Organization for the Reform of Marijuana Laws (NORML) sponsored the law. California NORML said in a statement that “not a single, scientifically controlled FDA study has shown cannabis metabolite testing to be effective in improving workplace safety or productivity. Studies indicate that metabolite tests for past use of marijuana are useless in protecting job safety.”

What the Law Doesn’t Change

It’s important to note the law has some exceptions. Specifically, the new testing restrictions law don’t apply to employers in the construction industry. Nor does the law prevent employers from keeping their businesses drug-free. Instead, it aims to enhance testing methods for detecting impairment and psychoactive substances in cannabis, making it possible to distinguish between recent cannabis use and traces that do not indicate impairment. That will allow human resources professionals to focus on eliminating damaging and potentially dangerous behavior instead of getting bogged down with broader disciplinary actions and the administrative burdens that come with them.

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