Having just returned from an HR conference in Washington State, we found that the questions around new legislation affecting marijuana testing were everywhere. If this does not affect you now, it likely will in the coming months or years. Below is some information on the current bills, and some options for compliance.
As 2024 approaches, California and Washington employers face a crucial decision that could have profound implications and potentially serious safety consequences. They must grapple with whether to continue pre-employment drug testing for marijuana. The surprising answer is that, despite recent legal changes, both states will still allow some form of testing.
What Do the New Laws Actually Entail?
Starting on January 1, 2024, employers in these states will no longer be allowed to discriminate against job applicants in Washington, employees and applicants in California, who legally use marijuana in their personal time, away from the workplace. This means that employment decisions cannot be based solely on an adult’s legal use of marijuana. However, it’s essential to understand the specifics of the new laws.
The laws in both states do not explicitly forbid marijuana testing but rather prohibit discrimination against individuals who use marijuana legally outside of work. Employers cannot take adverse employment actions in California based solely on a positive test result for the “non-psychoactive” metabolite of cannabis. This means traditional urine tests, which detect metabolites, are no longer reliable for marijuana screening. Therefore, the option will be to remove THC from your pre-employment urine panel, or to use a method that is testing for the psychoactive drug, rather than the metabolites.
(Here is a link to the bills for California and Washington.)
Exceptions to the Rule
- In California, construction workers are exempt from the prohibition on urine testing.
- Washington’s law maintains an extensive list of “safety-sensitive” positions unaffected by the new legislation.
- Employers adhering to U.S. Department of Transportation (D.O.T.) regulations will continue using urine tests.
What are the options besides urine testing?
To continue testing for marijuana, employers will need to adopt alternative methods that detect the actual drug, or its parent compound, instead of metabolites. One such method is oral fluid testing. While both California and Washington’s laws do not expressly mention this method, the current wording of the laws leaves an option for employers to use oral fluid testing, which tests for active marijuana in the system, rather than metabolites.
Breath Marijuana testing is also just starting to be implemented in laboratories and businesses nationwide, however, is not yet widely available. We’ll provide more information on that process as it becomes an option.
Federal agencies, including the Substance Abuse and Mental Health Services Administration and the U.S. Department of Transportation, have recognized the scientific validity of lab-based oral fluid testing, making it a viable option for employers. Oral fluid samples are easier to collect than urine or hair samples, and they cannot be easily tampered with, reducing the risk of cheating on drug tests.
What can we expect next?
As the effective date for both laws approaches, various developments may occur. Lawmakers might revise the laws to tighten restrictions on testing, employers may lobby for more exemptions, or some companies may opt to eliminate marijuana testing altogether.
Why is testing for marijuana important?
What remains certain is that the legalization of marijuana nationwide has coincided with a rise in positive drug test results. Employees increasingly admit to substance abuse issues and on-the-job drug use, affecting their performance. States allowing recreational marijuana have higher positive drug-test rates, and companies that cease marijuana testing report more post-accident positive results, indicating potential safety and productivity concerns.
Employers in California and Washington face a critical decision in the coming months – whether to test for marijuana or not. Balancing workplace safety and employee well-being will be paramount as they navigate this evolving landscape. To test or not to test for marijuana – that is the question these employers must soon answer.
Occuscreen cannot provide legal counsel. However, for more information on drug testing options, please reach out to us at info@occuscreen.com