Positive test for pot, but not impaired? New California labor law aims to address that

Betty Q. Hixson

On Sunday, Gov. Gavin Newsom signed 10 cannabis-related bills into law. The one most likely to effect company-worker relations changes the rules for employee drug testing.

“It is a big deal,” Lisa Ann Hilario, partner with Spaulding McCullough & Tansil law firm in Santa Rosa, said of Assembly Bill 2188. “Because the use of cannabis is legal in California you had people disqualified for jobs or facing discipline from jobs if they came up with a positive cannabis test even if they were not impaired at work.”

Marijuana is the most prevalent drug that shows up in employee drug tests, according to a 2022 report by Quest Diagnostics. The company, reports positive marijuana tests going up in each of the last five years for U.S. workers.

In 2017, 2.1% of employee drug tests showed there was marijuana in the person’s system; with the percentage increasing to 2.3% in 2018; 2.5% in 2019; 2.7% in 2020; and 2.9% in 2021.

The increase may have much to do with the proliferation of the legalization of marijuana at the state level. Today, 36 states and Washington, D.C., have laws that allow for the legal consumption of marijuana either medicinally, recreationally or both.

Reaction to the legislation

“This is a huge win for cannabis users and the industry. No one should be discriminated against for using a product that is legal for both adult and medicinal use,” Eli Melrod, CEO of Solful dispensary in Sebastopol in Sonoma County, told the Business Journal. “This new law is important for those who would like to use cannabis for their health and well-being, but can’t because they are regularly drug tested at work. We encounter customers like this all the time at Solful. My hope is this will allow cannabis users to be treated like the rest of society.”

California NORML, the state chapter of the National Organization for the Reform of Marijuana Laws, said the law corrects a problem it sees as unfair to workers.

“The most commonly used drug test by employers, urine tests, can pick up a worker’s cannabis use days or weeks before they show up for work and have no correlation with on-the-job impairment,” Cal-NORML said on its website. “By contrast, oral swab tests, which are permitted for use in the bill, detect actual THC and are a better indicator of recent use.”

As AB 2188 went through various iterations during the legislative session, CalChamber changed its stance. Initially the bill was called “a job killer,” which is the group’s harshest designation. The final version was still opposed, but no longer came with the more severe label.

The chamber’s website states, “A remaining concern is that the bill creates a new protected class under the California Fair Employment and Housing Act (FEHA) whereby someone who engages in off-site, off-duty medical marijuana use becomes a protected class.”

California is not the first state to protect employees who smoke pot outside of working hours. According to Cal-NORML, 21 states have laws protecting medical marijuana users against job discrimination. The six that also protect all users, like what AB 2188 will do, are Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island.

What the law says

Beginning Jan. 1, 2024, smoking pot in one’s free time is no longer a detriment to employment as long as the worker isn’t impaired on the job.

Plenty of exceptions are written into the law, like companies with federal contracts or employees needing security clearance. This is because marijuana is still illegal at the federal level. Those in the building and construction trades also fall outside of the new law.

Backers of the bill like Cal-NORML were concerned people were being unfairly reprimanded for smoking marijuana outside of work because the product can be detected in one’s system long after the high has gone away.

Hair, blood and urine samples do not determine if someone is high at the moment the test is taken. Current law, though, says a positive marijuana test can be grounds for discipline even though the person was necessarily not high at work.

The bill explains how tetrahydrocannabinol (THC) is what causes psychoactive effects. When it is metabolized it is stored in the body as a nonpsychoactive cannabis metabolite. This does not mean the person is compromised.

“As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites,” the bill says. “These alternative tests include 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.”

The bill ensures employers can still maintain a drug- and alcohol-free workplace by not allowing workers to use drugs at work or be impaired on the job.

Labor law attorney Hilario said it imperative employers document an “employee’s fitness for duty” if it is believed drug use or impairment is occurring at work.

“For example, if I document your speech is slurred or you have bloodshot eyes or are falling asleep at your work station, anything that might indicate something is affecting your fitness for duty, and I send out for a drug test and it comes back positive for cannabis, I am handling you for your current condition at work,” Hilario told the Journal.

This added documentation is necessary because a test alone does not prove someone is under the influence.

“I have been advising clients for the last few years that a positive cannabis hit on a drug test does not mean impairment. It is not a test for impairment like a blood alcohol content test,” Hilario emphasized.


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