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Compliance Clips: What Does California's New Marijuana Law Mean for Employers?

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In our newest Compliance Clips video, Asurint's General Counsel, Kelly Uebel, and Marc Bertrand, Director of Drug Testing at Asurint, discuss California's AB 2188, a new law offering protections for marijuana users. What does this law mean for employers with workplace drug testing programs?

Note: The Information offered in this video is educational and does not constitute legal advice. Consultation with qualified legal counsel is recommended.

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Video Transcript

Kelly Uebel: Hi this is Kelly Uebel, General Counsel for Asurint. Today we'll be talking about a new marijuana law in California, Assembly Bill 2188, which goes into effect January 1, 2024. This law will extend new protections for marijuana users. 

So what does this mean for employers? 

It does make it an unlawful practice for an employer to discriminate against an individual in hiring, termination, or any other term or condition of employment, based upon the individual's use of marijuana off the job and away from the workplace, or a drug test that is found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. 

So I'm sure your question is going to be, "What kind of drug test can I do, then?"

Marc Bertrand: With urine, hair, and blood, it’s the non psychoactive metabolites that are what is being tested for. So, in other words, when THC is ingested, it immediately begins to break down into the non-psychoactive metabolites.

Traditional urine, hair, and blood testing are only testing for those metabolites. So if you go back to the first component of the law, if it's unlawful to discriminate in hiring or employment. With non-psychoactive THC metabolites, then basically you're ruling out the ability to test urine, hair, or blood.

Kelly Uebel: Employers may still take adverse employment related actions based on quote "scientifically valid pre-employment drug screening, conducted through methods that do not screen for non-psychoactive cannabis metabolites" endquote. Now that test may or may not exist. Some have argued that oral swabs may meet the law's requirements. But we strongly encourage consultation with qualified legal counsel to ensure any testing done meets the law's requirements. 

Now this law is not intended to permit an employee to possess, use, or be impaired by marijuana on the job. And it does not impact an employer's ability to maintain drug and alcohol-free workplaces. The law also does not preempt any state or federal laws that require drug testing for applicants or employees, and does not apply to employees working in construction.

Between now and January 1, 2024, we recommend employers work with qualified legal counsel to review their drug testing practices, as well as their workplace drug-free policies.

Closing Announcer: Stay up to date with us. Download our comprehensive guides on employement law for background screening sign up for quarterly Keeping Up with Compliance webinar with Kelly, or visit our blog for the most recent compliance news.

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