Keya Denner, co-chair of Constangy’s Cannabis & Employee Substance Abuse Practice, authored an article published by Cannabis Business Executive on June 5 highlighting what California employers should know related to the off-duty use of cannabis by their employers.
“On January 1, California joined several other states in protecting employees who lawfully use recreational cannabis outside of the workplace,” Denner explained. “AB 2188 makes it unlawful for an employer to discriminate against an applicant or an employee for using cannabis off the job or because a drug test reveals the presence of ‘nonpsychoactive cannabis metabolites.’” Additionally, companion law SB 700 provides that employers may not request information from an applicant for employment relating to the applicant’s prior cannabis use unless this information is obtained from a lawful background check.
Although there are limitations to its extent, drug testing is still allowed in the state of California. Denner noted that the California legislature actually recommends impairment tests that measure employee performance against their own prior performance and tests that can identify TCH in an individual’s body, instead of traditional urinalysis tests.
Denner suggested that there will be amendments to the law in the future, especially since there have already been a number of proposals.
“Employers in California should look at their current policies and update them as needed to ensure compliance with this new law,” recommended Denner. “They also would be wise to consider training for supervisors and management geared toward observing and documenting signs of impairment on the job.”
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