June 22nd, 2023 | Heather Horn, VP, Product Fulfillment, Drug & Health Services

How Can Employers Navigate New State Drug Testing Restrictions?

As states continue to legalize both recreational and medicinal uses of marijuana, employers are challenged to find ways to keep their employees safe and productive while ensuring their businesses are following all applicable state and federal laws and regulations. Meanwhile, this legislative trend is driven in part by employees seeking workplaces which allow them freedom in their personal lives.  

Two impactful laws employers need to immediately begin considering how to navigate are CA AB (California Assembly Bill) 2188 and WA SB (Washington Senate Bill) 5123. Both laws go into effect on January 1, 2024, and will change the landscape of how employers can perform drug testing for marijuana going forward. California and Washington will now place their legislative focus on the protection of an employee’s right to use marijuana legally while away from the workplace. Employers will now be required to test for THC (tetrahydrocannabinol), the psychoactive ingredient in marijuana, rather than for a cannabis metabolite, to establish current impairment on the job.

First, let’s briefly sum up both of these laws.  

California’s Legislative Bill 2188:      

• Makes it unlawful for employers to discriminate against individuals in conditions of employment, hiring, and termination based on a person’s legal use of marijuana off the job.  
• Requires employers to test for THC rather than a cannabis metabolite. 
• Does not allow an employee to be impaired, use, or possess marijuana on the job.  
• Does not apply to employees and applicants in the construction and building industries, nor employees requiring federal background investigations.  
• Has no impact on federally-mandated drug testing, including Department of Transportation (DOT) testing for regulated modes of transportation.      

Washington’s State Bill 5123:    

• Makes it unlawful for employers to make hiring decisions based on the legal use of marijuana off the job.  
• Allows employers to make hiring decisions based on scientifically-valid drug testing methods that do not screen for non-psychoactive cannabis metabolites.  

• Allows the employer to maintain a drug-free workplace. 
• Only applies to drug testing for controlled substances for pre-employment, and is not applicable to other testing such as post-accident or reasonable suspicion.   
• Does not apply to applicants seeking positions in federal government, WA law enforcement, positions within fire departments, first responders, corrections officers, airlines, and safety-sensitive positions.  
• Has no impact on federally-mandated drug testing, including Department of Transportation (DOT) testing for regulated modes of transportation.    

How Can Employers Comply with These New Laws?

Employers should recognize the difference between drug testing for THC as the parent drug of marijuana and the metabolites. The parent drug typically has a much shorter detection window since it’s quickly metabolized and eliminated from the body. Metabolites, on the other hand, can be detected for a longer period of time.  

It’s important for employers to understand that a positive drug test for marijuana does not in itself prove impairment. The best way to connect a drug result with impairment is through recent-use detection. Currently, most labs’ urine testing programs cannot test for the parent drug of marijuana, THC. Oral fluids testing, however, does detect the parent drug of THC.   

Oral fluids testing is legally defensible and permitted in 47 of 50 states including WA and CA, has a shorter window of detection that covers the entire time of impairment, and is also endorsed by the federal government. Moreover, in 2022, additional support for oral fluids testing came when the DOT published its notice of proposed rulemaking, which has now become a published Final Rule in May 2023 and lists the following attributes of oral fluids testing:   

• Preventing specimen tampering (all collections observed) 
• Potential cost savings 
• Quick and easy specimen collections 
• Fewer collection facility requirements 
• Tighter window of detection       
• Recent-use detection    

Technology continues to rapidly evolve as the deadline for adoption of the two new state laws approaches. There are multiple alternative options to oral fluids testing that Sterling will be keeping our clients updated on as the technology continues to evolve. Several of our lab partners are actively working on urine drug testing methodologies that they anticipate will be available by Q4. These methodologies will allow for testing of THC rather than the metabolites. Sterling is also partnering with a provider who will enable a THC Breathalyzer, which will also test for the parent drug, showing very recent use for clients who would like to specifically target THC.    

As January 2024 approaches, it’s important to evaluate your drug screening programs, considering the items discussed above and keeping in mind that Sterling offers numerous drug panel options that also exclude marijuana as an additional option.

Compliance Takeaways

Marijuana laws continue to evolve, and it’s critically important to review your drug testing policy regularly with your qualified legal counsel to ensure it adheres to current regulations and laws. Now is also a great time to provide education to your employees and supervisors about your drug-free workplace policies, in order to dispel any misconceptions around how this recent legislation has changed employee rights. While conducting this review, also confirm that your supervisors are professionally trained to recognize the signs and symptoms of possible impairment, while also making sure to define exactly what actions they should take if they recognize those signs and symptoms in the workplace.    

The job of all employers is to maintain both a safe and productive work environment, which ultimately helps ensure the health and success of your business.  Sterling is proud to partner with you to offer a wide selection of Drug & Health Screening solutions to assist you to stay compliant while also helping to protect the safety of your employees.

Please feel free to reach out to Sterling with questions or concerns; our Drug & Health Screening experts are ready to assist. 

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Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.