California has implemented new requirements in the procedures for testing for THC among some employees. The law DOES NOT make it illegal to test for Marijuana. You CAN continue your drug free workplace program. Drug free workplace programs and testing for THC is still legal in California. The law creates a requirement of confirmation by a lab of a particular metabolite of THC prior to making any employment related decisions. This metabolite can be confirmed by utilizing saliva testing instead of urine. If the law applies to you, a change in testing methods will need to be made. The new law also provides for several exemptions and if your employees fall under any of the exemptions the law does not apply and adjustments to your testing methods are not needed.
The Law does NOT change Federal Testing Programs and the law provides several exemptions that many employers fall under. We have included the complete law for reference. We are advising employers to begin by reviewing the law with their legal counsel to determine if the law will apply to them.
12954. (a) (1) Except as specified in subdivision (c), it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(A) The person’s use of cannabis off the job and away from the workplace. This paragraph 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.
(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.
(2) This subdivision does not apply to an employee in the building and construction trades.
(b) Except as specified in subdivision (c), it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.
(c) Information about a person’s prior cannabis use obtained from the person’s criminal history is subject to subdivisions (a) and (b), unless the employer is permitted to consider or inquire about that information under Section 12952 or other state or federal law.
(d) This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by state or federal law or regulation.
(e) This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
(f) This section does not apply to 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 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
(g) This section shall become operative on January 1, 2024.
After review of the law:
If the law does not apply to your employees:
Nothing is required. All testing methods and protocols can remain the same.
If the law does apply to your employees:
Please contact our office as soon as possible so that protocol changes can be made and setup can be completed. We will review your current protocols and program and make adjustments that best fit your company’s needs.
The following is a quick reference checklist:
- Review the law and determine how it applies to your company.
- Once a determination has been made, contact Mobile Occupational Services if any protocol changes are needed to accommodate alternative testing methods to your Non-DOT testing program.
- Update your policies as needed. If the law does not apply to your company, something should be noted and added to your policy. If legal guidance is needed, we are advising employers to contact Attorney, Carolyn Sieve at Constangy, Brooks, Smith, & Prophete LLP.
- Educate all staff on any policy updates. Even if your company does not fall under this requirement employees should be educated to avoid any confusion.
Frequently Asked Questions
- Does this law apply to all employees?
No. The lists exemptions as well as conditions when the law does not apply to certain employees. Please review the law prior to making any changes to your procedures or policies.
- Is drug testing still allowed in California?
California Law does not prohibit employers from having a drug free workplace program. Several California laws address the ability for employers to have a drug testing program. The new law does the same. The new law notes that it does not apply to federally regulated drug testing or employers in the building and construction trades, and it does not affect the rights or obligations of employers to maintain a drug- and alcohol- free workplace. The law also does not permit employees to possess, be impaired by, or use cannabis on the job.
- Can I still test for Marijuana in California?
Yes! California only requires a method that tests for the psychoactive metabolite of Marijuana. A change from urine to saliva will accommodate this requirement.
- Does this law apply to my DOT testing program?
No! This law does not change DOT testing in any manner. Your DOT testing program should remain the same.
- What if I remove marijuana from my testing panel?
A drug free workplace program must include drugs that are noted by the Substance Abuse and Mental Health Administration and that have been adopted by Federal Drug Testing programs. Incomplete programs create an unsafe workplace, make employers ineligible for Federal and State contracts, leave employers open to lawsuits, and can result in increases in insurance costs.
- Why does urine testing not meet the requirements of the new law?
Urine testing remains a staple among testing methods, however California is requiring a method that confirms the psychoactive metabolite within Marijuana. At this time, urine tests for a different metabolite of Marijuana. Urine can remain your primary testing method and it is still DOT approved and the primary testing method by the Department of Transportation and Federal Drug Testing Programs. However, saliva must be used to confirm for Marijuana to meet the California law for non-federal testing.
- Does DOT use saliva testing?
Not yet. The Federal Regulations have approved the use of saliva testing; however all of the protocols, kits, and laboratory certifications have not been completed yet. The current estimate is at least a year before DOT will implement Saliva Testing for DOT covered employees.
- Has the state provided any guidance?
None. The law does provide explanation within the first section of its requirements noting that employers cannot use “drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” Employers must test for a psychoactive metabolite when confirming Marijuana use.
- What do I do if I have more questions or need to adjust protocols?
Contact our office at 760-244-6886. We can adjust your program to meet the requirements and your companies needs. We can also provide answers to questions as well as a referral to an attorney that specializes in California Law.
Mobile Occupational Services is a third-party administrator that designs programs to help organize company substance abuse testing and employment screening. Mobile Occupational Services’ programs help companies comply with the Department of Transportation regulations as well as ensure the best quality candidates are considered for employment, in an effort to maintain a safe, drug free, and quality workplace. Our services include:
- Laboratory Services
- Random Testing
- FMCSA Clearinghouse
- On-Site Collections
- MRO Services
- Policy Development
- Consortium Services
- Employment Screening
Questions, contact us at 760-244-6886