Does California Drug Test for Weed? AB 2188 Employment Rules

California AB 2188 limits employer drug testing for non-psychoactive marijuana use and permits impairment and active THC testing. Beginning January 2024, most employees gain workplace protections, though safety-sensitive and federally regulated positions remain exempt.

By Brad Nakase, Attorney

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Table of Contents

1. Introduction

2. Does California Drug Test for Weed: New approaches

3. Revisions to Drug Testing and Policy

4. Conclusion

Introduction

For the very first time, California has formally offered protections for recreational marijuana users in the workplace. The Fair Employment & Housing Act (“FEHA”) is amended by California Assembly Bill 2188. It goes into effect on 1^st January 2024.

This raises an important question: “Does California Drug Test for Weed?” The answer is nuanced.

AB 2188 makes it illegal for a company to discriminate against candidates or workers for:

Using marijuana outside of the job and far from the place of employment.
Having non-psychoactive marijuana substances in their system (reported in a drug test by their employer)

The ingredient in cannabis that gives its users a sense of high is called THC. It is a type of psychoactive cannabinoid. The body stores non-psychoactive cannabis metabolites when THC goes through metabolism. It only serves as a reminder that marijuana was consumed during the previous few weeks.

AB 2188 forbids employers from using test findings for non-psychoactive marijuana compounds against a candidate/worker (beginning in 2024), if everything the test indicates is prior marijuana use. Employment-related drug tests are often conducted to check for intoxication in the field and/or at the workplace, not for chronic use.

The conventional and widely used marijuana usage tests (i.e., those that check for non-psychotic cannabis metabolites) are no longer permitted to be used for before-employment drug testing or as grounds for disciplining or terminating employees, according to a specific law passed by the California Legislature. Test findings that demonstrate (1) current impairments and/or (2) the existence of marijuana’s psychotropic chemical constituents, however, may still result in disciplinary action or termination for both applicants and workers.

This new law has certain significant exceptions. In particular, workers in the building and construction sectors, as well as those employed for jobs requiring federal background & clearance checks, are exempt under AB 2188. Workers in other highly hazardous sectors like manufacturing, transportation, medical services, & agriculture aren’t protected from AB 2188.

Please keep in mind that nothing in the new regulations allows a worker to use, possess, or be impaired by marijuana while on the job (clearly stated by the law). The California Health & Safety Code guarantees all employers the right to keep their workplaces free of alcohol and drugs.

Many Californians wonder: “Does California Drug Test for Weed?” With Assembly Bill 2188 (AB 2188) taking effect on 1^st January 2024, the answer is changing in a big way.

The purpose of AB 2188 is to draw attention to the fact that there is no connection between an employee’s present and/or active impairment at work and testing for non-psychotropic cannabis substances in their system (i.e., the widely used and popular testing technique), which can remain in their system for several weeks after use.

As a result, starting in January, alternative testing techniques that concentrate on the psychoactive elements of marijuana in a person’s fluids and/or tests for impairment against the employee’s baseline performance, rather than the existence of non-psychoactive cannabis metabolites, must be employed.

Does California Drug Test for Weed: New approaches

1. Tests for Impairment

The California Legislature clarified that “impairment testing” is a practical way to assess a worker’s impairment while they are on duty and/or at the workplace. The specifics of the “impairment test” are not covered in detail by the Legislature; however, tests akin to those used for booze at traffic stops would be useful. Does California drug test for weed anymore? Not in the old/traditional way.

2. THC Testing for Psychoactive Ingredients That Are Active

The California Legislature emphasized that newer drug tests that detect the existence of recently taken THC, like saliva, have been developed, and that science has advanced. Therefore, a company is entitled to test for psychoactive elements of marijuana rather than non-psychoactive cannabis byproducts if there is reason for suspicion.

The oral fluid test is presently the accepted test for this kind of testing. It is not clear how practical it is to perform those exams in real-time. They are still relatively new. The challenge will be striking a balance between adhering to AB 2188, maintaining a skilled and diverse staff, and guaranteeing employee safety. It is hoped that drug testing firms would take advantage of this to create and improve a testing product that is presently unavailable on the market, but will be very beneficial for all companies in California in the future.

Revisions to Drug Testing and Policy

Pre-employment screening is essential for preserving a drug-free work environment. It also guarantees worker and public safety (depending on the sector). Employers in California who are not legally exempt from the statute’s provisions should review their drug-screening procedures. It includes recruiting, disciplining, and terminating employees (taking AB 2188 into account). This is especially important when it comes to marijuana.

Employers who wish to avoid responsibility under FEHA should eliminate pre-employment cannabis testing procedures that use the currently accepted testing procedures for non-psychoactive marijuana metabolites. The psychoactive element of marijuana and/or the worker’s impairment during the interview process or while on duty may be tested by the employer. Employers who want to be sure they are ready to abide by AB 2188 in the new year should speak with their employment and labor lawyers.

Conclusion

So, “Does California Drug Test for Weed?” Yes, but only in ways that matter for safety. Employers will not be allowed to take any negative workplace measures (i.e., altering the terms or circumstances of employment, such as terminating or refusing to hire) against workers for using marijuana while off the clock once AB 2188 takes effect on 1^st January 2024. As a result, beginning from that date, there will be significant changes to the ways in which employers may screen for marijuana usage and when they can reprimand employees for using it.

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Does California Drug Test for Weed? AB 2188 Employment Rules

Introduction

Does California Drug Test for Weed: New approaches

Revisions to Drug Testing and Policy

Conclusion

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