Laws protecting off-duty use of marijuana don’t mean you have to stop testing for it!
Although Assembly Bill 2188 was passed over a year ago, there is still a lack of clarity about what it means for employers in California. Even some drug testing service providers are under the impression that AB 2188 spells the end of marijuana testing in the state. This is not the case.
“AB 2188 doesn’t say employers can’t test; it’s an anti-discrimination law. If your drug testing program detects anything other than Delta-9 THC, then you cannot take action under the new rule. Employers will be required to utilize a scientifically valid method to detect Delta-9 THC (e.g., oral fluid testing); otherwise, they cannot refuse to hire, terminate, or otherwise discriminate against an individual who tests positive for marijuana/cannabis. We certainly recommend employers continue to test, especially for safety-sensitive jobs, but they must ensure they are utilizing compliant screening methods.”
Bill Judge, Drug Screening Compliance Institute
To understand how misconceptions about the law have arisen, one only needs to look at the coverage this law has received.
Below are five examples we identified that offer incomplete information about AB 2188.
- California’s AB2188 Now Prohibits Employee Discipline for Off-Duty Marijuana Use (Occupational Health & Safety Online, 10/13/2022)
“While prior law made clear that employers could terminate employees for off-duty marijuana use, a new bill prevents employers from taking adverse action against an employee for such use. Instead, the new law only authorizes adverse action against employees who are impaired in the workplace, thus necessitating review of employers’ drug and alcohol policies to ensure compliance with the new law.”
AB 2188 does not require employers to demonstrate impairment prior to making an adverse employment decision. As long as the employer utilizes a test that detects psychoactive THC, not its metabolites, subsequent employment decisions can be made lawfully. - Can CA employees be fired after drug test comes back positive for marijuana? We explain new law (ABC 7 News, 4/20/2023)
“During employment, we can have drug testing if the employer feels that the employee is somehow impaired in doing their job, possibly because of marijuana or other drug use, but even in doing that, during employment testing, just merely finding traces of THC in the system is not enough to take action. It has to be at a level in which it is actually impairing the employee’s ability to do his or her job.“
AB 2188 does not mention specific levels of THC that justify employment decisions. It does not say “you can fire someone for having a lot of THC in their system but not if they only have traces of it.” It says that you cannot fire or refuse to hire someone on the basis of detecting nonpsychoactive metabolites of THC.
A test that detects carboxy THC (THC-COOH) cannot be used to make an employment decision. A test that detects the presence of the psychoactive THC parent compound can be. - New Rules For California Employers Testing for Marijuana Use Are Approaching Fast (California Labor & Employment Law Blog, 8/7/2023)
“…an employer can and should test, upon reasonable suspicion, using methods that test psychoactive components of marijuana and not for the non-psychoactive cannabis metabolites.
The test currently recognized for this type of testing is the oral fluid test. However, those tests are relatively new and it is not clear how feasible it is to administer those tests in real-time.”
Oral fluid drug testing is relatively new, in that it began about a decade later than urine testing. But oral fluid tests are not new by any means – they have been in use for over twenty years. Millions of oral fluid drug tests are performed in the US each year.
There is nothing in AB 2188 that prevents an employer from using lab-based (GCMS or LCMS) oral fluid testing, or any oral fluid test that filters out nonpsychoactive metabolites. - Podcast from a large employment law firm (8/17/2023)
“… it seems a little puzzling to me that these laws that California and Washington are now saying that employers need to distinguish or use drug tests that distinguish between psychoactive components and non-psychoactive components of marijuana. I’m just not aware of any tests that can do that. So, for the moment, unless someone invents a brand new drug test that can detect only psychoactive components of marijuana, we are advising employers in … California not to test for marijuana in California at all as of January 1st.”
As mentioned above, lab-based oral fluid testing is able to differentiate between the psychoactive THC parent compound and its nonpsychoactive metabolites. Buzzkill’s technology, which performs rapid detection of psychoactive THC, is the latest development in a long and robust history of oral fluid testing.
It is relatively common to see (and hear from customers about) employment law firms advising clients in California to stop marijuana testing altogether rather than adopting oral fluid. One possible explanation is that employment law firms focus primarily on protecting clients from the risk of lawsuits associated with employment policies and practices. Our industry needs to make sure that the risk of accidents and injuries stemming from workplace drug use remains part of the conversation. - Latest California workplace marijuana law leaves even more space for litigation (Human Resources Director Online, 10/18/2023)
“If you do a test and it’s positive, and the employee knows it’s positive, and you don’t hire, then you can be sued… It’s just expensive for employers. I would advise my clients to not test for marijuana.”
Interestingly, this article doesn’t mention oral fluid. Similar to the case above, this quote seems like an example of a law firm focused on driving one particular category of risk to zero (eg, the risk of getting sued by a failed jobseeker), without fully taking into account the significance of other risk categories (eg, the risk of a marijuana user getting high at work and causing an accident).
Given the information landscape around AB 2188, it’s no surprise that many employers, and even some testing companies, are under the impression that AB 2188 will end marijuana testing in California. AB 2188 does not prohibit marijuana testing in the state. It prohibits companies from making employment decisions on the basis of tests that identify nonpsychoactive metabolites of THC. Hair and urine testing are not viable under AB 2188.
Oral fluid, on the other hand, contains the psychoactive THC parent compound. As long as a testing method isolates and identifies only that compound, it will be lawful under AB 2188 in its current form. Buzzkill Labs has developed the first rapid oral fluid test that isolates only psychoactive THC, making it the most appropriate rapid test under AB 2188.
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Buzzkill Labs is not a law firm. The information contained within this post does not, and is not intended to, constitute legal advice.
