California businesses have until 1 January, 2024, to update their policies, practices and procedures to accommodate the new law, Assembly Bill 2188 (AB 2188), which prohibits penalising or firing employees who use marijuana on their own time. The law prohibits companies from discriminating against employees who test positive for cannabis in their urine, blood, hair, or other body fluids. The test only determines if an employee has consumed marijuana in recent weeks.
However, businesses are concerned about the availability of testing for current impairment and making sure employees are aware of the changes. Employers will still be able to pre-screen job applicants for drug use, but the testing will have to be done with a product that detects current marijuana use.
AB 2188 has some exceptions, such as employees in the building and construction trades and those hired for positions requiring federal background checks. Covered employees can file complaints with the California Civil Rights Division and take legal action against employers who violate the provisions. Employers continuing to use older forms of testing and penalising workers could face lawsuits.
Liebert Cassidy Whitmore’s labour and employment attorney, Shelline Bennett, stated that pharmaceutical firms are still refining testing methods for current impairment (THC). She said that the only legal evidence available to prove an employee’s impairment while working is a witness. Bennett further explained that it could be simpler for employees to consume marijuana while on remote or hybrid work schedules. The implementation delay has caused this issue to be off most employers’ radars.
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