What is California’s Assembly Bill 2188 and how does it relate to your drug testing program?

CA State Capitol AB 2188

Marijuana legalization both reflects and influences the general public’s perceptions of the substance.  Before 1996, when marijuana was categorically illegal in all states, it made sense to use a test that could detect its use days, weeks, or even months ago.  A company would reasonably want to know if their employees were breaking the law outside the workplace.

By legalizing marijuana for medicinal use in 1996, California set off a chain of events that has led to some form of legalization or decriminalization in 45 states as of today.  Even in states where marijuana is still illegal, employers have less and less appetite to punish employees for off-duty use away from the workplace.

Legalization — and the culture surrounding it — has put companies with drug free workplace policies in a tricky spot.  Do you penalize employees who test positive for marijuana when they insist that they used it neither at the workplace nor just before the workday began?

California’s AB 2188, which passed in 2022 and will go into effect at the start of 2024, answers this question for the state’s employers. The law states:

It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:

(1) The person’s use of cannabis off the job and away from the workplace.

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Although it is not the first state to enact such a law, California tends to have an outsized effect on the policies that other states choose to adopt.  We have seen similar legislation pass in Washington and Connecticut already.  More than a dozen other jurisdictions are also codifying this principle in various stages of laws or regulations.

AB 2188 will upend decades of drug testing policy in California.  With the exception of federally-regulated jobs (eg, DOT) and the construction trade, employers in California will no longer be able to use urine or hair tests for THC.  This is because urine and hair do not contain the psychoactive THC parent compound in meaningful quantities — they contain its non-psychoactive metabolites.

On the one hand, this makes things more fair for employees who perform their duties diligently and choose to use cannabis in their off-time.  Why should they be punished for something that does not affect their work?  On the other hand, AB 2188 creates a situation for employers that is potentially quite unfair.  Without new technologies to rapidly test for the presence of psychoactive ∆-9-THC, it will be difficult to deter marijuana use on the job, creating an unsafe and less than optimally productive workplace. 

Despite its good intentions, AB 2188 has created much confusion.  How do you determine if someone used on the job vs. last week?  Many people, including drug and alcohol testing industry veterans, are under the impression that they can no longer test for marijuana in California when the law goes into effect on January 1, 2024.  This is a misconception.

To continue testing for marijuana in California, employers must first choose a sample type that contains psychoactive THC.  Second, they need to use a testing methodology that doesn’t cross-react with non-psychoactive metabolites and cannabinoids such as CBD.

The first condition means oral fluid is likely the only viable specimen type for workplace THC tests in California.  There has been some hype around breath-based technologies; however, a recent NIST study noted that their research did “not support the idea that detecting THC in breath as a single measurement could reliably indicate recent cannabis use.”  More about that study here.

The second condition arguably means that conventional rapid oral fluid tests are not viable either, as these tests tend to have a high degree of cross-reactivity with metabolites of THC and compounds like CBD.

This leaves employers with limited legal options:

  1. Stop testing for THC and accept the risk that comes with this decision
  2. Use lab-based oral fluid, which at best means waiting several days for results
  3. Adopt a new kind of rapid oral fluid test that doesn’t cross-react with compounds similar to THC

Buzzkill Labs allows employers to select the third option.  We have devised a rapid oral fluid testing platform that uses chromatography instead of lateral flow (strip tests).  Chromatography is the gold standard for separating THC from non-psychoactive metabolites and cannabinoids. 

Because our test looks for the psychoactive THC parent compound, employment decisions made on the basis of positive results are valid under AB 2188.  

If the old saying “as California goes, so goes the nation” remains true today, then you can expect legislation protecting off-duty cannabis use to become the norm.  We can help you set up a marijuana testing program based on detecting psychoactive THC so that you and your business can stay ahead of the curve.

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