Recent legal developments have impacted drug and alcohol policy enforcement in the workplace. In this episode of California Employment News, Weintraub Labor & Employment attorneys Lizbeth “Beth” West and Ryan Abernathy provide an overview of the latest legal updates, best practices for implementing these policies, and how they apply to remote workers.

Watch this episode on the Weintraub YouTube channel.


Show Notes:
Ryan: Hello, everyone, and thank you for joining us on this installment of California Employment News, an informative video resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Ryan Abernethy. I'm joined today by my partner, the Distinguished Beth West. For today's episode, we'll be discussing some developments in the area of drug and alcohol policy enforcement in the workplace and how to best implement those policies with remote workers. Beth, why don't you start us off and tell us about the current state of the law regarding cannabis use in the workplace.

Beth: Thanks, Ryan. Even though federal law still classifies cannabis, also called marijuana, as an illegal controlled substance, many of you probably know the use of medical and recreational marijuana is legal for adults in California. Because marijuana use is legal in California, most, but not all employees have certain employment protections now for the legal off-duty use of marijuana. Pursuant to A. B. 2188 and S. B. 700, which are codified in our California Government Code and went into effect January first of 2024, California employers with five or more employees may not request information about prior cannabis use from an applicant for employment or use any information obtained about prior use from a criminal background check when making hiring decisions. Also, covered employers may not make any employment decisions, including hiring, termination, or any other decision regarding the terms and conditions of employment, or penalize current employees because of the employee's lawful use of cannabis off the job and away from the workplace. There are exceptions to this. An employer is permitted to make those decisions if they are required to do so under applicable law. For example, employers in the construction industry or those that are subject to federal background or security clearance obligations.

However, employers can still mandate that employees not report to work under the influence of cannabis or possess or use cannabis during work hours, which would include during meal and rest periods or at any work location or work event, including while driving for work. Employers can still conduct post-offer pre-employment drug screens for applicants and also conduct drug tests for current employees in certain situations. However, there are limits and requirements under the law when they do so. I'm going to turn this over to Ryan now, who will discuss employer policies in drug testing.

Ryan: Thanks, Beth. Given this new cannabis law, the next question that naturally arises is, to what extent can companies test their employees for the use of cannabis and other drugs in the workplace? Off the top, it's important to note that random drug testing is almost never permissible in California. But for job applicants, employers can conduct post-offer, pre-employment drug screens, including for marijuana, and can deny employment if the test is positive for what's called psychoactive THC. Even if the applicant was legally using the marijuana, medicinally or recreationally. For current employees, California law prohibits an employee from taking adverse action against an employee on the basis of drug test results showing only non-Psychoactive cannabis metabolites. We're going to use that term a lot here. What that is, a non-Psychoactive cannabis metabolite, those are substances in a person's hair, in their blood, urine,