By Keya Denner
On January 1, California joined several other states in protecting employees who lawfully use recreational cannabis outside of the workplace. AB 2188 makes it unlawful for an employer to discriminate against an applicant or an employee for using cannabis off the job or because a drug test reveals the presence of “nonpsychoactive cannabis metabolites.” A companion law, SB 700, provides that employers may not request information from an applicant for employment relating to the applicant’s prior cannabis use unless this information is obtained from a lawful background check. Together, these new workplace laws provide broad protections to California cannabis users, but businesses and special interest groups are pushing for additional carve-outs that would allow certain California employers more flexibility in implementing their drug testing policies.
AB 2188 Changes How Employers Can Test For Employee Cannabis Use
California’s new law disfavors urinalysis testing, which is the traditional method of drug screening that employers have used for decades. Specifically, AB 2188 makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment if the discrimination is based upon: 1) the person’s use of cannabis off the job and away from the workplace, or 2) an employer-required drug screening test that has detected nonpsychoactive cannabis metabolites in the person’s urine, hair or bodily fluids. AB 2188 Sec. 2, 12954(a)(1) and (2). The law, however, still allows employers to require drug screening as a condition of employment if the test does not screen for “nonpsychoactive cannabis metabolites.”
Why is California effectively outlawing urinalysis testing for cannabis metabolites? The legislative findings underpinning AB 2188 reveal that the California Legislature is concerned that nonpsychoactive cannabis metabolites “do not indicate impairment, only that an individual has consumed cannabis in the last few weeks,” and therefore, tests for these metabolites “have no correlation to impairment on the job.” AB 2188 Sec. 1(a) and (b). Furthermore, the Legislature notes that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites,” including “impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.” Id. at Sec. 1(c).
The Science Behind Drug Testing for Cannabis
The California Legislature’s concern that urinalysis testing does not indicate cannabis impairment is supported by accepted metabolic science. When a person ingests cannabis, the body metabolizes tetrahydrocannabinol (THC) into 11-OH-THC and THC-COOH. The former binds to receptors in the brain, causing a euphoric “high,” while the latter is an inactive byproduct that binds to fat cells. THC-COOH metabolites are nonpsychoactive and are released over many days and sometimes weeks as the body metabolizes fat. Marilyn A. Huestis, Human cannabinoid pharmacokinetics, Chemistry & Biodiversity, 4(8), 1770–1804 (2007). Accordingly, a drug test that measures the presence of cannabinoid metabolites does not conclusively establish that an employee was impaired while at work, as opposed to having consumed cannabis legally outside of work – sometimes many weeks prior to the test.
Alternative Methods of Detecting Cannabis Impairment
While urinalysis testing is relatively cheap and accessible, it tests for the presence of nonpsychoactive metabolites, not active THC. There are other methods of testing for active THC, like blood, hair and saliva; however, each of these have drawbacks. Blood testing is highly invasive and therefore raises serious privacy concerns. In addition, blood and saliva testing offer only a minimal window of time before any active THC exits a person’s bloodstream. And while some companies have touted a cannabis “breathalyzer” that targets active THC molecules on the breath, this technology has yet to become widely available or accepted by employers nationwide.
Aside from these chemical tests to detect the presence of THC in the body, employers can also rely on observations of employee behaviors to establish workplace impairment. California and other states with similar laws appear to favor this method of detection. There are, however, drawbacks to this approach as well. Specifically, criminal defense lawyers have argued for years that the methodology employed by specially trained police officers (referred to as drug recognition experts or DREs) to determine if a person is impaired by cannabis or other drugs is akin to “junk science,” and it is likely that lawyers for aggrieved employees will mount similar litigation stances.
Exceptions and Future Carve-Outs to AB 2188
Upon the passage of AB 2188, many California employers expressed concern that the exceptions contained in the law were too limited, especially given the lack of a carve-out for “safety-sensitive” employees. Currently, AB 2188’s exceptions include:
California employees in the building and construction trades. California applicants or employees hired “for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 …, or equivalent regulations applicable to other agencies.” AB 2188, Sec. 2, 12954(d).Additionally:
Employers may take action against applicants and employees who possess, are impaired by or use cannabis on the job. Id. at 12954(b). Employers are allowed to maintain a drug- and alcohol-free workplace. If applicants or employees are required by state or federal law to be tested for controlled substances, those workers are exempt from the requirements of AB 2188. Id. at 12954(e).Since AB 2188 went into effect, there have been attempts to amend it to expand the types of employees that are exempt from the law’s protections. Specifically, a proposed amendment to the law would exempt sworn law enforcement employees who are involved in the apprehension, incarceration or correction of criminal offenders; handle civil enforcement matters; are involved in evidence gathering and processing; or provide coroner functions. This amendment, which is supported by several law enforcement groups, advanced out of the California Senate Appropriations Committee in mid-May by unanimous vote. Opponents of the amendment are wary that allowing carve-outs for this group of workers will lead to future attempts to expand exemptions for other industries.
Take-Aways for Employers
Employers in California should look at their current policies and update them as needed to ensure compliance with this new law. They also would be wise to consider training for supervisors and management geared toward observing and documenting signs of impairment on the job. Companies should also review their current third-party drug test providers and drug testing panels and consider alternative testing methodologies, such as saliva and oral fluid testing.
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