New Drug Testing Laws for CA and WA. Are you Ready?

Welcome to 2024 and Happy New Year! As of January 1,2024 there have been new bills released that impact pre-employment hiring and drug testing. Are you hiring candidates in California or Washington? If so, let's go over new bills that came out this month to see if you have HR policy in place or if you are compliant.

California Assemble Bill 2188 (AB 2188) and Senate Bill 700 (SB 700) are related to California's pre-employment laws and testing for marijuana in the work place. To set the precursor, marijuana usage has been legal in California for years. AB 2188 prevents employers from discriminating against marijuana usage outside of work and testing for non-psychoactive cannabis metabolites. These are some role/job duty exceptions listed: building, construction, federal government contracts or government security requirements, and DOT (Department of Transportation) positions. California's AS 2188 did not list an exception for safety-sensitive positions. Employers can take action if a drug test is non-negative for psychoactive cannabis metabolites and the employee shows impairment at work. California's law does not allow an employee to posses, be impaired by, or use cannabis on the job.

California's SB 700 is an amendment to FEHA (Fair Employment and Housing Act), making it to where employers are not permitted to ask about prior marijuana use.

Washington's SB 5123 states similar non-discrimination against employees or applicants that use cannabis outside of work and usage that does not impair job performance. Marijuana usage has been legalized in Washington as well. Washington employers are prohibited from making hiring decisions based upon pre-employment drug testing for off-the-job cannabis use that shows non-psychoactive cannabis metabolites in the hair, blood, urine, or other bodily fluids. There are job related exceptions for these roles: law enforcement, fire department, first responder, corrections officer, airline or aerospace industry, safety sensitive positions, federal contracts or federal funding, and DOT (Department of Transportation) positions.

In conclusion, new laws can be hard to decipher and should be worked out with your in-house legal team. This way you can feel confident in drug testing protocols and workplace policies.

Things employers are encouraged to consider:

• Review workplace policies and procedures with in-house legal to make sure they are up to date and communicated with candidates and employees.
• Define safety sensitive roles or exceptions in new drug testing laws that might apply to your organization.
• Psychoactive drug testing is still permitted, check what products are available on the market.
• Work with in-house legal on reasonable suspicion and post-accident testing policies as you can test for psychoactive cannabis metabolites.