Can California Employers Still Drug Test for Marijuana?

California, like 22 other states and the District of Columbia, permits recreational marijuana use.  In 2016 California voters passed Proposition 64- “The Adult Use of Marijuana Act”- which allowed adults over 21 years of age to grow, possess and smoke marijuana.  At the federal level, marijuana continues to be classified as a controlled substance.

This raises the issue of how the legality of marijuana use squares with the workplace environment; specifically, employer drug testing.  Many employers have implemented some form of drug testing requirements to ensure workplace safety.  How does Proposition 64 reconcile with workplace drug testing requirements?

In September 2022 California Governor Gavin Newsom signed Assembly Bill 2188 (Quirk) into law.  The new law (which becomes effective January 1, 2024) prohibits an employer from discriminating against an employee in hiring, discipline, termination, or any other condition of employment based on recreational marijuana use.  The new goes further, and specifically restricts an employer’s ability to drug test for marijuana use.  Certain testing is allowed, but general marijuana drug testing is now prohibited if it is part of an employment requirement.

The new law has certain exemptions.  It does not apply to employees in the building and construction trades.  It also does not preclude an employer from maintaining a drug free workplace and employees can still be disciplined or terminated for marijuana use at work, or for being under the influence.  As with alcohol, if an employee comes to work under the influence of marijuana, the employee could be disciplined or terminated without running afoul of the new law.

Employers are free to continue drug testing for other controlled substances and this new law has no impact on that testing.

If your business currently has a mandatory drug testing protocol that includes testing for marijuana, we encourage you to learn more about this new law and its potential application to your business in 2024.  If adjustments need to be made to that protocol, now is the time to begin implementing them to ensure you are in compliance come January 1^st.

For additional information on these new legal requirements, please contact us.

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