California employers who test for cannabis: Changes to state discrimination law are coming in 2024
Employers can prohibit their workers from consuming alcohol or drugs on the clock, or being under the influence while they are performing their job duties.
That’s clear. But another thing isn’t.
How will California employers test their employees to see if they’re high on cannabis once changes to the state’s Fair Employment and Housing Act start in 2024?
Last month, Gov. Gavin Newsom (D) signed Assembly Bill 2188, which makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment ... if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.”
What this means: In 14 months, California workers can’t be fired, disciplined or discriminated against in the hiring process for past cannabis use – or if they use cannabis after work hours and perform their jobs unimpaired.
The tricky part is this: As the bill states, most workplace drug tests conducted for cannabis have no correlation to impairment on the job.
“None of these workforce drug tests are able to assess impairment,” Barry Sample, senior science consultant for Quest Diagnostics, told Bloomberg Law.
That’s because they indicate only whether a nonpsychoactive cannabis metabolite is present in the body. THC, the chemical compound in cannabis that gets you high, can remain stored in your body up to a few weeks after impairment or psychoactive effects are active.
So what are employers to do? The bill claims that they “now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.”
It’s true that several alternatives to traditional drug tests have emerged in recent years: oral and saliva tests, impairment tests and even a cannabis “breathalyzer.”
Hound Labs markets a breath-testing device that it says identifies employees who use cannabis “immediately prior to coming to work rather than those who used it days or weeks prior to testing.” Cannabix Technologies also makes a similar device.
An October 2021 study in the journal Science Translational Medicine evaluated a saliva testing system called EPOCH that can distinguish cannabis use within 12 hours from less recent use.
"Combined with EPOCH's speed and simplicity, the oral THC test has the potential to become a practical surveillance tool," the study authors said, according to the American Association of the Advancement of Science.
And then there are tests that measure a suspected drug user against their baseline cognitive performance.
Impairment Science makes a mobile app called Druid that measures response times through a series of tests done on a screen. The makers say the app operates like a video game and “records hundreds of neurophysiological indicators to detect cognitive and motor impairment in just 3 minutes.”
There’s also this option. Some companies, including Amazon Inc., have dropped cannabis screening for nonregulated positions because of the disproportionate impact of pre-employment drug testing on people of color.
There are exceptions to the bill: California employers can prohibit any cannabis use by workers in the building and construction trades. And applicants or employees hired for positions that require a federal government background investigation or security clearance are also exempt from the changes to the FEHA.
The bill also doesn’t preempt state or federal laws requiring job applicants or employees to be tested for cannabis, including laws and regulations requiring tests as a condition of employment.
California workers who are subject to federal Department of Transportation regulations, for example, will continue to be prohibited from cannabis use. These include pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains, and pipeline emergency response personnel, among others.