California and Washington 2024 Laws on Marijuana Use and Employment
Workplace drug testing to detect marijuana use has some significant changes in 2024 for employers in California and Washington. State statutes AB2188 (California) and SB5123 (Washington), effective January 1, 2024, restrict employment actions (e.g., hiring, firing, disciplinary, etc.) employers can take based on a drug test positive for marijuana metabolites. Basically, employers cannot take any adverse employment actions based on a drug result reported positive for THCA (Tetrahydrocannabinolic acid). THCA is a non-psychoactive metabolite and is a precursor to THC ( tetrahydrocannabinol), the principal psychoactive component of cannabis. Urine and hair testing for marijuana detects THCA; oral fluid testing for marijuana detects THC. Thus, employers in CA and WA can use oral fluid drug test results for employment actions because they detect the psychoactive component of cannabis.
In California, the restrictions apply to both pre-employment and post-employment (e.g., random, post-accident, etc.) drug testing. In Washington, the restrictions apply only to pre-employment or applicant drug testing. There are, however, exemptions for certain occupations. For instance, in California, the construction industry is mostly exempt, which means construction companies can continue to make employment decisions on employees and applicants based on the presence of the non-psychoactive metabolite(s) of marijuana in urine and/or hair specimens. In the WA statute, there is a list of exempt occupations (e.g., firefighters, first responders, 911 dispatchers, corrections officers, positions in the airline and aerospace industries, etc.) These laws do not apply to employers conducting federally mandated testing under U.S. Department of Transportation or the Nuclear Regulatory Commission regulations.
So, THE BOTTOM LINE. . .
- Can employers in CA and WA continue to do drug tests that detect marijuana use?
YES. Employers can take adverse employment actions based on a THC-positive drug test. THC is the metabolite detected in oral fluid drug testing. Employers are prohibited from taking employment actions based on urine and hair testing, which typically report the non-psychoactive metabolite THCA.
- Can employers in CA and WA continue to have drug-free workplace policies that prohibit employees from on-duty or on-property marijuana use, being under the influence of marijuana at work, or testing positive for the psychoactive metabolite (THC) of marijuana?
YES. Both the CA and the WA statutes affirm the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.
- Can employers continue to conduct urine or hair testing that detects THCA, not THC?
YES, BUT. Test results that detect THCA, the non-psychoactive cannabis metabolite, cannot be used as a basis for any adverse employment action, including not hiring an applicant, firing an employee, or other disciplinary action.
- What does WFQA recommend for our clients in CA and WA?
WA: Use oral fluid testing for pre-employment drug testing that includes marijuana, cocaine, amphetamines, opiates/opioids, and PCP on the testing panel.
CA: Use oral fluid drug testing for all employer-required testing. If you decide to continue to use urine or hair for your drug testing program, you should consider either dropping marijuana from the testing panel or ensure that you do not take any adverse action based on a marijuana positive (THCA) test.
- Does any drug test positive for THC or THCA establish impairment?
NO. There are no tests that establish cannabis impairment. State laws for “per se” driving under the influence of marijuana are based on THC blood level; however, they vary greatly from state to state.
WorkforceQA Can Help!
As marijuana laws continue to evolve, it is important for employers to stay informed and flexible in adapting their policies and practices. Navigating the complex legal compliance and workplace safety challenges can be daunting. In this rapidly changing industry, seeking advice from experts, such as WFQA, becomes crucial for employers seeking to maintain compliance and implement effective pre-employment screening.
Contact us to find out why employers partner with us:
Dr. Donna Smith
Regulatory Compliance Advisor
As one of the principal authors and architects of the regulations for the U.S. military, federal employees, and U.S. Department of Transportation(DOT) drug and alcohol testing programs, Dr. Smith has over 30 years’ experience and expertise in regulatory compliance. She is a nationally recognized expert in the areas of Federal drug testing regulations, drug and alcohol testing procedures, drug and alcohol abuse awareness training for employees and managers, medical review officer(MRO) procedures, drug free workplace policy and procedures, and substance abuse prevention and rehabilitation. Since 1990 she has served on the faculties of the American Society of Addiction Medicine (ASAM) and the American College of Occupational and Environmental Medicine (ACOEM) for continuing medical education courses in drug and alcohol testing.
Dr. Smith previously served on the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Federal Drug Testing Advisory Board (DTAB) and is a former President of the Substance Abuse Program Administrators’ Association (SAPAA), a national drug and alcohol industry association. Dr. Smith is an invited presenter at national conferences and symposia and is renowned for her training and education courses for urine specimen collectors, breath alcohol technicians, labor attorneys, managers and supervisors, employees, substance abuse professionals (SAP), and MROs. Dr. Smith earned a BA is sociology from Capital University, an MSW in clinical social work from Hunter College, CCNY, and an EdD/PhD in counseling psychology from Ball State University.
WorkforceQA provides educational content only and is not intended as legal advice. The reader is responsible for the information’s use and should consult a professional or legal expert.
