By Jennifer Jacobus, PHRca, SDEA CEO
There is a new law taking effect on January 1, 2024, that employers who conduct pre-employment drug screens (after an offer of employment) need to be aware of. This new law (AB 2188) prohibits discrimination based upon an applicant’s or employee’s use of cannabis off the job and away from the workplace. The law prohibits discrimination based on a positive drug-screen revealing non-psychoactive cannabis metabolites (as opposed to THC revealing active impairment). This law prohibits employers from requesting information from an applicant relating to the applicant’s prior use of cannabis.
Worth noting is that AB 2188 had originally stated that these new would not apply in certain circumstances (i.e., in building and construction trades or where required by enumerated federal laws), but another Bill, SB 700, only exempts applicants for positions requiring a federal government background investigation or security clearance from its broad prohibition on inquiries about prior cannabis usage; it does not exempt the building and construction trades from this new rule.
This new law also prohibits an employer from inquiring about or using information about a person’s prior cannabis use obtained as part of their criminal history unless the employer is permitted to do so under Government Code section 12952 (which places strict limits on the use of criminal history in hiring) or other state or federal law.
If you have any questions regarding your pre-employment practices, SDEA is HeRe with you, give us a call at 858-505-0024.