First, it does not ban drug testing – nor even completely ban testing for marijuana use. Indeed, much of the bill’s language sets forth what AB 1288 does not do. It further declared 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.” have no correlation to impairment on the job,” the Legislature concluded. The Legislature thus made findings and declarations in AB 1288 that metabolites “do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.” Drug tests typically seek to identify employees who may be impaired, but tests whose “results only show the presence of the nonpsychoactive cannabis metabolite. These metabolites remain detectable for weeks, long after any psychoactive effect or impairment ends. The second prohibition targets testing that detects nonpsychoactive cannabis metabolites, which are the metabolites left in the body after it metabolizes tetrahydrocannabinol (THC). It gives legal protection to this use of the substance, while the use of other legal products or substances alone does not enjoy legal protection against employment discrimination. The first protection in AB 1288 is simple enough: Employers cannot discriminate based on an individual’s off-the-clock cannabis use away from the workplace. Rather, the new law focuses on protecting against discrimination based on the use of cannabis outside of work hours and the workplace. Starting in 2024, AB 1288 will bar employment discrimination based on two grounds: (1) the “use of cannabis off the job and away from the workplace,” or (2) the results of an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.”Ĭontrary to some reports, AB 1288 is not a wholesale ban on employers restricting employees’ marijuana use or testing for it. providing, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.” Now, with AB 1288, employers will have to deal with these issues. In contrast, Proposition 19, a previous legalization measure that voters rejected in 2010, would have provided that “o person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act. Significantly, Proposition 64 did not prohibit discrimination against employees who use marijuana. The measure further provided that it did not change “he rights and obligations of public and private employers to maintain a drug-and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of the employer to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.” See Cal. Proposition 64 declared its intent to “llow public and private employers to enact and enforce workplace policies concerning marijuana.” In Health and Safety Code section 11362.45, the initiative expressly provided that the measure shall not be “construed or interpreted to amend, repeal, affect, restrict or preempt” various existing laws, such as driving while under the influence. It also did not impact the Ross decision. While making dramatic changes in drug laws, the initiative did not change the legal landscape in employment law or drug testing. In 2016, California voters legalized marijuana through Proposition 64. The court further held that employers are not required to permit or accommodate marijuana use as a reasonable accommodation under California’s Fair Employment and Housing Act (FEHA). ![]() RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), the California Supreme Court held that an employer lawfully could refuse to employ an individual who failed a drug test, even if the positive test resulted from medical use authorized under Proposition 215. ![]() That initiative did not contain any provision requiring employer accommodation or prohibiting discrimination. Through Proposition 215 in 1996, California legalized marijuana for medical reasons in certain instances. ![]() Previous Laws and Decisions on Marijuana and Employment
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