Hi, here’s your HR quickie for today, December 28, 2023.

The recent wave of marijuana legalization has caused some confusion for employers.  Because these laws are state based, and not authorized under Federal statute, many employers are at a loss as to what to do regarding possible use of this drug by their employees.

Well, California has taken a step to provide a bit more clarity (and more complexity) for employers.

Effective January 1, 2024, employers with 5 or more employees, are barred from considering off duty marijuana use when they make decisions about hiring, or even on-going employment for current employees.  And you also can’t ask applicants about prior marijuana use.  But most notably, the new law directly impacts employment-related drug testing.

You see, most drug tests (specifically those that use hair or urine specimens) can only indicate that marijuana has been used sometime in the past period – and that period could be a long as months earlier.  So, it’s not really giving information about whether or not the person is currently under the influence of the drug.

So, what does all this mean – well, it doesn’t mean you can’t do drug testing  at all.  You just have to be sure the test is providing current information – and if the person tests positive under an allowed test, then you can still take appropriate actions.

Tests that measure active THC molecules at the time of the test, are allowed.  Generally these are tests using saliva or fluids and blood tests.  But, since I’m neither a physician nor attorney, you should definitely confer with both before using, or relying on, any type of drug test results.

Now, there are some exceptions like employers in the building trades, and positions that are subject to federal testing, federal background investigations or security clearances – because, of course, marijuana is still illegal at the Federal level.

And the California law doesn’t apply to non profit religious associations or corporations.  And all employers are still allowed to prohibit use or possession on the job, or impairment while working.

But, keep in mind – even with all that – there continue to be specific protections in place around when, how and if, you can drug test an applicant or employee.  So be sure you’ve carefully investigated all the details before you move forward.