Employment Law Bulletin | September 22, 2022

New Law Protects Employees’ Off Duty Marijuana Use

Effective January 1, 2024 (yes 2024), it will be unlawful for California employers to discriminate against an employee in hiring, termination, and other terms and conditions of employment based on (1) the employee’s off-the-job use of cannabis; and (2) drug test results that measure the nonpsychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

The new law’s protections address the limitations of traditional drug tests that don’t distinguish between unmetabolized tetrahydrocannabinol (THC) levels that can indicate impairment and cause psychoactive effects, from metabolized THC that is stored in the body as a nonpsychoactive cannabis metabolite long after cannabis use.  Currently, most cannabis tests show only the presence of the nonpsychoactive cannabis metabolite.

The law permits employers to act upon positive THC drug tests only if their actions are based on a scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.  We expect to see advancements in such tests over the next year, which may be why the law is not effective until January 2024.

Even after the law becomes effective, employers may still discipline employees for possessing, being impaired by, or using cannabis on the job, however, such use cannot be proven by a drug screening that screens for nonpsychoactive cannabis metabolites.

The new law does not apply to:

• employees in the building and construction trades;
• applicants and employees in positions requiring a federal background investigation or clearance; or
• applicants or employees who are required by state or federal law to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

While the law does not become effective until January 1, 2024, it’s never too early to contact an SMT employment law attorney to discuss updating your workplace drug and alcohol policies and testing requirements.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown