Questions linger about what exactly constitutes cannabis use “off the job and away from the workplace” and what it means to be “impaired by” cannabis. These exclusions appear to be intended to account for federal laws that proscribe marijuana use, distribution, and possession. The new law also does not preempt state or federal laws requiring applicants and employees to be tested for controlled substances – or requiring a specific method of testing – as a condition of employment, or as a condition of receiving federal funding or federal licensing-related benefits or entering into a federal contract. It also expressly excludes from the protected categories staff in construction or building trades, or positions requiring federal background investigations or security clearance, as specified. Nor does it permit an employee’s use or possession of, or impairment by, cannabis while on-duty. The new law, however, explicitly states it does not affect an employer’s rights or obligations to maintain a drug-free workplace. Therefore, to avoid unlawful discrimination under the new category, an employer-required drug test should screen for active impairment by the THC compound, not the leftover metabolites. Although the new law does not expressly prohibit employers from requiring employees to take a drug test that screens for nonpsychoactive cannabis metabolites, it does prohibit employers from taking adverse action against an employee based on a test showing positive for nonpsychoactive cannabis metabolites. In other words, a person could have nonpsychoactive cannabis metabolites in their body but not be impaired presently. It can remain in the body for up to several weeks after metabolization of the chemical compound, and after the psychoactive effects have fully dissipated. The pertinent cannabis metabolite – that causes impairment and psychoactive effects (i.e., feeling “high”) – is tetrahydrocannabinol (THC). Employers are not prohibited, however, from hiring or employment decisions “based on scientifically valid preemployment drug screening” that excludes nonpsychoactive cannabis metabolites, and instead only tests for active cannabis metabolites that could impair the person at the time of the test. Employers will not be permitted to penalize or fail to hire a person – such as through setting employment terms, employment conditions or by termination – if such action or inaction is based on either of the specified cannabis-related categories. 1, 2024, employers will be prohibited from taking adverse action against a person based on their recreational cannabis use outside of work. However, with this addition, and the recent addition of “reproductive health decisionmaking” as a category protected under the FEHA, California employers may expect this trend continue. The new law adds two cannabis-related categories that also will be protected from discrimination: (1) discrimination based on cannabis use “off the job and away from the workplace” and (2) discrimination based on the results of an employer-required drug test finding a person to have “nonpsychoactive cannabis metabolites” in the person’s “hair, blood, urine, or other bodily fluids.” These two newly protected cannabis-related categories are unlike most currently protected categories stemming from one’s innate qualities rather than a lifestyle, choice, or behavior. Under existing California law, the Fair Employment and Housing Act (FEHA) protects an individual’s right to gain and hold employment free from discrimination, abridgment, or harassment on the basis of various protected classes, including race, religion, national origin, physical or mental disability, medical condition, marital status, sex, gender, age, and veteran status. Employers have about a year to evaluate their workplace policies and testing protocols related to cannabis use. 18, 2022, adds Section 12954 to the Government Code. The bill, which Governor Newsom signed into law Sept. 1, 2024, California employers will be prohibited from discriminating against employees for off-duty cannabis use. As discussed in our recent alert on California’s 2023 Legislative Update, beginning Jan.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |