Clearing the Haze: The Method and the Madness Behind the New Cannabis Laws in California and Washington

On September 18, 2022, California amended its major employment discrimination regulation to particularly regulate the drug testing methodologies that employers might use when making hiring, termination, and different employment choices regarding hashish customers. Extra not too long ago, on Might 9, 2023, Washington Governor Jay Inslee signed comparable laws regarding preliminary hiring choices. Each legal guidelines, which will probably be efficient January 1, 2024, are the primary of their type as a result of they require employers to have a fundamental understanding of a considerably difficult problem – the science behind hashish testing.

Testing for THC

The first psychoactive agent – the factor that will get folks excessive – in hashish is delta-9-tetrahydrocannabinol (THC). At current, most employers use urine drug assessments, which goal the hashish metabolite THCA, which is nonpsychoactive. Thus, when an employer receives a urine check outcome, all of the employer is aware of is that the individual has used hashish at a while within the current previous (from days to a number of weeks); precisely when, nonetheless, is unknown. THC is the first goal and is present in higher concentrations in drug assessments that use saliva specimens, which in flip results in check outcomes which can be tied to or associated to psychoactive impact.

Not one of the scientifically legitimate drug assessments, together with people who use saliva specimen, inform an employer whether or not an individual is impaired at or close to the time they supply a specimen for testing.

California’s AB 2188

On September 18, 2022, California Governor Gavin Newsom signed AB 2188, which amended the Honest Employment and Housing Act (FEHA) to primarily make hashish customers a protected class in California. Efficient January 1, 2024, will probably be illegal for many employers to discriminate in opposition to an individual in reference to hiring, termination, or one other employment resolution if the discrimination is predicated upon both:

(1) The individual’s use of hashish off the job and away from the office. This paragraph doesn’t prohibit an employer from discriminating in hiring, or any time period or situation of employment, or in any other case penalize an individual primarily based on scientifically legitimate preemployment drug screening carried out by means of strategies that don’t display screen for nonpsychoactive hashish metabolites.

(2) An employer-required drug screening check that has discovered the individual to have nonpsychoactive hashish metabolites of their hair, blood, urine, or different bodily fluids.

There are a number of exceptions to the brand new employment discrimination prohibitions: (1) staff within the constructing and building trades; (2) candidates or staff employed for positions that require a federal authorities background investigation or safety clearance in accordance with Division of Protection rules, or equal rules relevant to different companies; and (3) candidates and staff required to be examined beneath state or federal legal guidelines and rules or as a situation of an employer receiving federal funding or federal-licensing advantages or getting into right into a federal contract.

What does this imply? Subparagraph (2) focuses solely on the kind of check. Extra particularly, employers can’t take an opposed employment motion in opposition to an applicant or an worker primarily based on a drug check that targets nonpsychoactive hashish metabolites. As defined above, this successfully makes urine assessments ineffective (and illegal) to California employers. In consequence, lined employers who want to check for hashish ought to take into account discontinuing urine testing on or earlier than January 1, 2024, no matter whether or not the check is for a job applicant or a present worker.

What about saliva/oral fluids testing? The reply appears to rely on whether or not the check is for a job applicant or a present worker. Subparagraph (1) states that an employer can reject a job applicant if the hashish check doesn’t display screen for nonpsychoactive metabolites, suggesting that an employer can depend on a pre-employment saliva/oral fluids check that targets the mum or dad drug THC.  The identical might maintain true for hair testing. 

Nonetheless, even when an employer makes use of a saliva/oral fluids check for a present worker that complies with subparagraph (2), it nonetheless should take into account the primary sentence of subparagraph (1), which prohibits employers from taking motion in opposition to somebody due to their “use of hashish off the job and away from the office.” Oral fluids assessments would possibly present a close-in-time correlation as to when staff use hashish, however they don’t show that staff truly are impaired or used hashish on the job or at work. In consequence, even when an employer makes use of a lawful testing methodology for a present worker, an employer that takes motion in opposition to an worker for hashish use nonetheless has important danger beneath FEHA as a result of it possible will probably be tough to rebut the worker’s assertion that they used “off the job and away from the office.”

Washington’s SB 5123

SB 5123, which takes impact January 1, 2024, states {that a} Washington employer can’t discriminate in opposition to an individual within the preliminary hiring for employment if the discrimination is predicated on: their use of hashish off the job and away from the office or an employer-required drug check that has discovered the individual to have nonpsychoactive hashish metabolites of their hair, blood, urine, or different bodily fluids. Nonetheless, the regulation doesn’t “[p]rohibit an employer from basing preliminary hiring choices on scientifically legitimate drug screening carried out by means of strategies that don’t display screen for nonpsychoactive hashish metabolites.” Accordingly, Washington employers can reject job candidates for hashish use if the employer makes use of the suitable drug testing methodology.

From a testing methodology perspective, Washington’s SB 5123 is identical as California’s AB 2188. It differs, nonetheless, insofar because the Washington regulation solely regulates pre-employment hashish testing, leaving in place the proper of an employer to keep up a drug-free office and coverage and to check present staff for hashish utilizing any scientifically-valid methodology. That is in step with the Washington legislature’s intent – “to forestall limiting job alternatives primarily based on an applicant’s previous use of hashish.”

SB 5123 incorporates a broad listing of exceptions, together with for positions: (1) requiring a federal authorities background investigation or safety clearance; (2) regulation enforcement, fireplace division, or different first responder positions; (3) corrections officers; or (4) within the airline or aerospace industries. The regulation additionally doesn’t apply if the applicant will work in a “security delicate place for which impairment whereas working presents a considerable danger of dying.” If an employer takes benefit of this exception, it should present discover to the applicant previous to their software for employment that the place sought is “security delicate.” Furthermore, the regulation doesn’t preempt state or federal legal guidelines requiring candidates to be examined for managed substances.

A sensible provision was added to the invoice because it made its method by means of the legislative course of: an employer can proceed to check candidates for hashish, presumably no matter the methodology utilized by the employer, so long as the hashish outcomes should not offered to the employer.

Subsequent Steps for Employers

Employers have little greater than six months to organize for these new legal guidelines, each of that are efficient on January 1, 2024. The California Civil Rights Division is anticipated to problem rules, however whether or not these rules will probably be finalized earlier than the top of 2023 is unclear. Within the meantime, California and Washington employers can be well-advised to seek the advice of with their drug testing laboratories to make sure their drug testing methodologies will adjust to these new legal guidelines. That is very true in California the place hashish customers (candidates and staff) are primarily a protected class, which makes them eligible for the total vary of FEHA damages out there (e.g., compensatory damages, attorneys’ charges, and prices) if an employer is set to have violated the regulation.