New Change in Law for Employer Drug Testing of Marijuana in California and Related Matters

Beginning January 1, 2024, it will be unlawful to discriminate against employees or prospective employees “in hiring, termination, or any term or condition of employment, or otherwise penalizing a person” for the use of cannabis off the job and away from the workplace. (Cal. Gov't. Code § 12954.) The law will not bar an employer from taking adverse action against an employee who is impaired while at the worksite or on duty, but the new law will prohibit the use of traditional marijuana tests for purposes of taking any action with respect to employee, including blood, urine, hair “or other bodily fluids” testing. (Id. at (a)(2).) The law does not apply to employees in building or construction, and the law will not preempt state and federal laws related to drug testing for controlled substances, including federal funding or federal licensing-related benefits, nor will it apply to jobs that require a security clearance or other federal government background investigation. (Id. at (a)(2) and (f).)

The amended law also makes it “unlawful for an employer to request information from an applicant for employment relating to the applicant's prior use of cannabis.” (Id. at (b).)

In general, there is no statute or regulation governing drug testing of employees and applicants by private employers in California. The parameters of workplace drug testing have been primarily developed by case law. The California Drug-Free Workplace Act of 1990 requires that all private employers awarded a contract or grant by a California state agency must certify that they will provide a drug-free workplace for their employees by:

• Notifying employees that they cannot, as a condition of employment, manufacture, distribute, possess, or use illegal drugs.
• Specifying the actions that will be taken against employees for violations of the prohibition.
• Establishing a drug-free awareness program for their employees.

The analysis for whether private employer drug testing is proper largely rests on Constitutional privacy grounds and the Vehicle Code. The California Supreme Court has yet to decide the appropriateness of random drug tests on existing employees, but the right of privacy under the California Constitution strongly weighs against random, suspicionless drug tests. There are, of course, exceptions.

We urge private employers in California to contact the attorneys in this Sidebar issue to further address any concerns about drug testing implementation given the new statutory implementation beginning in 2024.