On January 1, 2024, two laws in California regarding drug tests for marijuana conducted by employers on applicants – Senate Bill 700 (SB 700) and Assembly Bill 2188 (AB 2188) – along with a similar marijuana drug testing law in the State of Washington – Senate Bill 5132 (SB 5132) – will all take effect and provide protections for adult users of cannabis in those states.
Signed into law by California Governor Gavin Newsom, SB 700 will make it unlawful for an employer to discriminate against an applicant based upon “the person’s use of cannabis off the job and away from the workplace” and a “drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
However, while the law prohibits an employer from asking about marijuana use, SB 700 “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
In addition, SB 700 protects information regarding a person’s past marijuana use if the information is permitted under certain state and federal laws, does not apply to job applicants seeking employment in the building and construction trades, and does not allow workers to be impaired by marijuana on the job. The law takes effect January 1, 2024.
Governor Newsom also signed AB 2188 which would prohibit employers from punishing workers who fail drug tests that detect only inactive cannabis compounds called nonpsychoactive metabolites that follow use days or weeks prior to the drug test. Instead, employers would test for tetrahydrocannabinol (THC) which indicates a worker is currently under the influence.
According to the law, THC “is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.” The law states that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites” and “tests that identify the presence of THC in an individual’s bodily fluids.”
AB 2188 would also exempt applicants and employees in the building and construction trades, and in positions requiring a federal background investigation. AB 2188 does not preempt state or federal laws requiring applicants or employees to be drug tested for controlled substances as a condition of employment. The law takes effect January 1, 2024.
Signed into law by Washington Governor Jay Inslee, SB 5132 is an Act created after “the legalization of recreational cannabis in Washington state in 2012 created a disconnect between prospective employees’ legal activities and employers’ hiring practices.” The Act relating to the employment of individuals who lawfully consume cannabis will add language to state code.
“It is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon: (a) The person’s use of cannabis off the job and away from the workplace; or (b) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
However, SB 5132 does not apply to specific jobs that include positions requiring a federal government background investigation or security clearance, with a Washington law enforcement agency, with a fire department, as a first responder, as a corrections officer, in the airline or aerospace industries, or a safety sensitive position. The law takes effect January 1, 2024.
ClearStar is a Human Resources technology company specializing in background checks, drug testing, and occupational health screening. ClearStar offers Drug Screening Compliance Packages, a Marijuana Legality Interactive Map, and a State Drug Testing Laws Interactive Map to help employers comply with drug testing laws. To learn more, contact ClearStar.
© 2023 ClearStar. All rights reserved. – Making copies of or using any part of the ClearStar website for any purpose is prohibited unless written authorization is first obtained from ClearStar. ClearStar does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
Let's start a conversation
Thomas Ahearn - Digital Content Editor
Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including Artificial Intelligence (AI), "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, Equal Employment Opportunity Commission (EEOC), Fair Credit Reporting Act (FCRA), identity theft, privacy, social media screening, and workplace violence.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
