Up In Smoke: California’s New Cannabis Laws Become Effective January 1, 2024
In September of 2022, Governor Gavin Newsom signed AB 2188 into law and in October of 2022, he also signed SB 700 into law. AB 2188 prohibits discrimination based on off-duty cannabis use and drug tests which show non-psychoactive THC metabolites, while SB 700 prohibits pre-employment inquiries into prior cannabis use. Both AB 2188 and SB 700 will take effect on January 1, 2024.
What This Means for Employers:
Off-Duty Cannabis Use – Employers may no longer discriminate or take adverse action against candidates or employees based on off-duty cannabis use. Employers are not allowed to inquire or request information about a candidate’s prior cannabis use.
Drug Testing – AB 2188 limits drug testing to only allow for current and active THC, which indicates impairment and causes psychoactive effects. Employers are no longer allowed to test for non-psychoactive cannabis metabolites, which can stay in a user’s system for up to 60 days.
Drug-Free Workplace – While employers may continue to enforce a drug-free workplace policy, most CA employers will not be able to take any adverse employment actions if an employee uses cannabis while off-duty. Candidates or employees who are actively impaired or bring cannabis to work may still be denied employment opportunities, disciplined, or terminated.
Exemptions – These laws do not apply to the building or construction trades, employees who are hired for positions that require federal background investigations or security clearances, and it does not preempt state or federal laws that require applicants or employees to be tested for controlled substances.
Most CA Employers Will Not Meet Exemptions – There is a distinction between laws that require a drug free workplace, which is very common, versus laws that require actual drug testing, which is not common. Review government contracts for language specifics and requirements.
What do employers need to do next to be compliant with both AB 2188 and SB 700? There are several actions employers can take to safeguard your business for compliance as listed below:
Review & Revise Current Policies – Employers should review and likely revise their anti-discrimination and drug policies to ensure compliant language and procedures. Polices should distinguish between cannabis use while off-duty versus impairment at work and may describe which testing procedures will be utilized.
Drug Testing – Employers need to make sure they are using compliant testing procedures that measure only psychoactive marijuana components for current impairment and not marijuana metabolites that only measure prior cannabis use.
Applications & Background Checks – Employers should review their applications and new hire paperwork to ensure there are no inquiries about a candidate’s prior cannabis use. Employers should also review and possibly revise policies and procedures for criminal background checks.
Staying informed and proactive about HR matters and the new cannabis laws are critical for California small businesses. To ensure your compliance with the latest developments in cannabis laws or employment laws in general, schedule an HR Audit with Essential HR, Inc. Our team of experts will assess your HR policies, procedures, and practices while providing valuable insights to safeguard your business. Don't wait; reach out to us today and take the first step toward a resilient and compliant workplace!
