Jennifer L. Mora and Frederick T. Smith
On September 18, 2022, California Governor Gavin Newsom signed AB 2188, which is able to make it illegal for California employers to depend on hashish check outcomes for employment functions, until in very slim circumstances.
By together with the regulation as an modification to the Honest Employment and Housing Act (FEHA), the brand new regulation, which is efficient January 1, 2024, basically makes hashish customers a protected class in California.
In passing AB 2188, the legislature acknowledged that employers have an curiosity in stopping workers from “arriv[ing] at a worksite excessive or impaired,” however then went on to declare that “when most assessments are carried out for hashish, the outcomes solely present the presence of the nonpsychoactive hashish metabolite and don’t have any correlation to impairment on the job.” The legislature then made two broad assumptions that resulted within the closing model of AB 2188. First, that the “intent of drug assessments is to determine workers who could also be impaired.” Second, and most critically, that “employers now have entry to a number of kinds of assessments that don’t depend on the presence of nonpsychoactive hashish metabolites.”
The tip result’s a brand new part within the Authorities Code that makes it illegal for an employer to discriminate towards an applicant or an worker if based mostly on both of the next:
- the person’s use of hashish off the job and away from the office; or
- an employer-mandated drug check that reveals the person has nonpsychoactive hashish metabolites of their hair, blood, urine, or different bodily fluids.
In different phrases, an employer can’t depend on a optimistic hashish drug check outcome if the check screened for nonpsychoactive hashish metabolites — which basically means currently-available office drug assessments.
Employers can nonetheless prohibit workers from possessing, being impaired by, or utilizing hashish whereas working, and so they can preserve a drug-free office coverage.
The exceptions are slim. Particularly, the regulation doesn’t apply to:
- workers within the constructing and building trades;
- candidates or workers employed for positions that require a federal authorities background investigation or safety clearance in accordance with laws issued by the federal Division of Protection, or equal laws relevant to different companies; or
- candidates or workers required to be examined for managed substances below relevant regulation (e.g., Division of Transportation company testing laws) or as a situation of receiving federal funding or federal licensing-related advantages or getting into right into a federal contract.
As a result of the brand new regulation will probably be a part of the FEHA, an aggrieved particular person could sue for the total vary of FEHA damages obtainable, together with compensatory damages, attorneys’ charges, and prices.
Given the brand new development in different jurisdictions to drastically prohibit, if not successfully prohibit, employer use of hashish drug assessments, together with New York, Rhode Island, and the District of Columbia, the brand new California regulation is no surprise. Nevertheless, the legislature’s perception that employers at the moment have entry to scientifically dependable drug assessments that may show when an worker is impaired is mistaken. Because of this, California employers could be well-advised to make sure they’ve a sturdy and defensible cheap suspicion testing course of, which incorporates coaching managers on recognizing and documenting the indicators of impairment. Whereas California employers have greater than a 12 months to arrange for this shift within the regulation, they need to develop a plan and modify insurance policies and practices to mitigate the chance of a brand new class of claims which can be soon-to-hit the Golden State.