Akerman LLP – HR Protection
By way of JD ABOVE
https://www.jdsupra.com/legalnews/california-s-new-drug-testing-rules-2770586/
With the growth of legalization and commercialization — together with a number of state initiatives in 2024 and probably even federal laws — likelihood is good that your California enterprise has not less than a number of workers who eat leisure hashish of their spare time. . A brand new California legislation, Meeting Invoice 2188, protects these workers from the implications at work for utilizing hashish exterior of labor. Amongst different issues, AB 2188 prohibits employers from taking antagonistic motion towards workers for the consumption of hashish exterior of labor and limits employers from testing for hashish utilizing strategies that aren’t in a position to determine the energetic chemical compounds of hashish. Right here's what California employers can (and may) do.
Latest tendencies in hashish use
Regardless of its present federal authorized standing as a Schedule I prohibited substance, using hashish has elevated considerably throughout the nation as practically half of the states have legalized its leisure use. As of January 2024, leisure use of hashish is authorized for individuals over the age of 21 in 24 states and the District of Columbia, and medicinal use is authorized in 40 states. Latest polls present that 70% of Individuals help legalization. Federal lawmakers have taken be aware, with a number of senators issuing a letter on April 8, 2024, in search of cosponsors for a complete federal invoice to decriminalize, regulate and tax hashish. Much more not too long ago, on Could 21, 2024, america Division of Justice (DOJ) printed a discover of proposed rulemaking (NPRM) to reschedule marijuana to a Schedule III managed substance, primarily based on a evaluation that the drug has a comparatively decrease stage. of abuse and average or low bodily dependence and low likelihood of psychological dependence than Schedule I and II substances.
The proof of the rising prevalence of hashish use throughout the nation and in California is within the numbers:
Nationwide Statistics:
- 17% or 55 million Individuals use hashish.
- 54% of Individuals reside in states the place the leisure use of hashish is authorized (underneath state legislation).
- 74% of Individuals reside in states the place the leisure or medicinal use of hashish is authorized (once more, underneath state legislation).
- The hashish trade is predicted to generate practically $40 billion in income by 2024.
California Statistics: :
- 20% or 8 million Californians use hashish.
- 99.5% of Californians reside in a county with a hashish dispensary.
- There are extra hashish dispensaries in Los Angeles County alone (1,481) than in some other state.
Because the above statistics present, employers can count on an rising variety of their workers to make use of hashish not less than a couple of times per week, however solely not too long ago, the implications of such rising use for employers have gotten clearer .
Hashish and the office
Though California voters legalized leisure hashish in 2016, the legislature usually permits California employers to take care of drug-free office insurance policies or in any other case preserve hashish out of the office. (To see Part 11362.45(f) of the Well being and Security Code.) The rising reputation of the leisure use of hashish raises comprehensible issues concerning security and the standard of labor and competence. However California employers must be cautious when contemplating the right way to tackle these points. Excessive measures, corresponding to zero-tolerance insurance policies and drug-testing protocols, could be met with California legislation, which requires, for instance, cheap suspicion for drug testing and the interactive course of to find out lodging motive for medical situations (though California employers aren’t required to permit using medical marijuana on responsibility as an lodging).
New California legislation protects workers' off-the-job use of hashish
Whereas California employers can prohibit using hashish within the office, the enforcement of such insurance policies has posed further challenges. Hashish accommodates non-psychoactive metabolites that stay within the physique for weeks after the consequences put on off. Which means customary drug testing strategies can not reliably decide whether or not a person is underneath the affect on the time of the check or has merely consumed hashish within the earlier days or perhaps weeks.
AB 2188, which took impact on January 1, 2024, now imposes new necessities to make sure that California employers don’t make antagonistic employment selections primarily based on an worker's off-the-job use of hashish . In approving the legislation, the California legislature emphasised the significance of testing for energetic hashish compounds to find out impairment, versus inactive ones that don’t point out impairment and stay within the physique for a number of weeks after the hashish consumption. As acknowledged in AB 2188, there stays a consensus that workers shouldn’t attain a excessive or impaired office; nonetheless, drug check outcomes that solely present the presence of non-psychoactive hashish metabolites could have little or no correlation with the worker's precise impairment at work.
Accordingly, the legislation prohibits employers from discriminating towards candidates and workers in hiring, termination, or some other phrases, or in any other case penalizing an individual primarily based on:
(i) using hashish that happens exterior of labor and outdoors of the office; and
(ii) a drug check that returns a constructive outcome for non-psychoactive hashish metabolites.
There are a number of necessary exemptions, such because the legislation doesn’t apply to workers within the constructing or building trades or to workers employed for positions that require federal background investigations or safety clearance.
Individually, the California legislature additionally amended present legislation to ban employers from requesting or counting on info concerning prior hashish use obtained by means of a prison historical past or background examine (except in any other case permitted by state/federal legislation).
Sensible steps for employers
With AB 2188 now in impact in California, and extra states prone to comply with, there are a number of issues you are able to do to make sure compliance:
- Replace Drug Insurance policies: Replace worker handbooks and drug-free office insurance policies to mirror the brand new necessities of AB 2188 to make it clear that employment selections is not going to be primarily based on off-duty hashish use or existence of non-psychoactive metabolites.
- Replace recruitment/hiring practices: Advise recruiting and hiring workers to chorus from discussing and/or accumulating info concerning off-duty conduct and to assessment employment purposes for any query that might illicit such info.
- Evaluation and background examine practices: Work with background management companies on procedures to take away/defend info associated to prior hashish use (eg, cannabis-related prison historical past) till it’s a part of your background screening course of.
- Contact Your Drug Take a look at Vendor: Verify that your vendor doesn’t check for or report on non-psychoactive hashish metabolites when conducting pre-employment or “good trigger” drug testing of candidates and workers and determine different exams for hashish impairment .
