California and Washington Cannabis Testing: New Drug Screening Requirements 2024

Employers in California and Washington will face significant changes to drug screening requirements in the new year. Taking effect January 1, 2024, California Assembly Bill 2188 (AB 2188), Senate Bill 700 (SB 700), and Washington State Senate Bill 5123 (SB 5123) will impact how employers can respond to off-duty cannabis use. 

The intent of these new legislation changes in California and Washington is to prevent discrimination against people who use cannabis lawfully while balancing the need for a safe and productive workspace. As a result, employers must revise their drug screening programs by the end of the year to comply with these new regulations. 

If you’re an employer in California or Washington, you may be wondering how this will impact hiring or how to update your testing practices. Let’s explore what each of these new legislations entail, how they impact employers like you, and ways you can prepare your organization for new drug screening requirements in 2024. 

Drug Testing Updates: California

In California, where medical and recreational cannabis use was legalized in 2016, the new legislation introduces certain protections for people who use cannabis off-duty. California’s new laws aim to prevent discrimination against employees or applicants purely because they have engaged in cannabis use outside of work unless the individual holds a role explicitly exempted by the statute. AB 2188 also prohibits employers from discriminating against drug screen results that measure “non-psychoactive cannabis metabolites” for an applicant’s or employee’s hair, urine, or blood. 

These laws do not sanction employees to be in possession of, impaired by, or use cannabis on the job. These regulations also do not impact an employer’s right to maintain a safe, drug and alcohol-free work environment. Consult Section 11362.45 of the Health and Safety Code if you need more clarification on your rights to create and keep a safe and productive workplace. 

Protections and Exemptions for California Employers

California Assembly Bill 2188 establishes two primary protections for employers hiring in the state:

• Employers can maintain hiring and employment standards based on scientifically valid pre-employment drug screening that does not detect non-psychoactive cannabis metabolites
• Employers are allowed to take action if an employee’s drug test reveals non-psychoactive cannabis metabolites, but this action can only be taken if the test demonstrates impairment at work

AB 2188 also sets forth various exceptions and exemptions for employers in California, including: 

• AB 2188 does not apply to employees in the construction and building industries
• AB 2188 does not apply to applicants and employees requiring federal government background investigations or clearances
• AB 2188 does not override state or federal laws applicable to companies receiving federal funding, federal licensing-related benefits, or that have federal contracts

California Senate Bill 700

SB 700 centers around California’s Fair Employment and Housing Acts. This new regulation amends the Fair Employment and Housing Act to specifically prohibit employers from asking that job applicants disclose prior cannabis use. 

Drug Testing Updates: Washington

In Washington, where medical and recreational cannabis use was legalized in 2012, new regulations aim to rectify the discrepancies in legal cannabis use and employer hiring practices. 

Similar to California’s AB 2188, Washington’s Senate Bill prohibits employers from discriminating against applicants and employees based solely on off-duty cannabis use that does not impact job performance or productivity. The main difference between California's and Washington’s new regulations is that Washington’s SB 5123 only applies to pre-employment drug screening. 

Protections and Exemptions for Washington Employers

Washington’s Senate Bill 5123 introduces protections for employers hiring within the state. Here’s a breakdown of how these protections apply to you: 

• Does not affect an employer’s right to maintain a drug and alcohol-free workplace
• Does not prohibit an employer from making hiring decisions based on scientifically valid drug testing that does not screen for non-psychoactive cannabis metabolites
• Does not apply to testing for controlled substances outside of pre-employment, such as post-accident testing 

There are also various protections and exemptions for employees in Washington under this new Senate Bill. SB 5123 does not apply to the following applicants and situations: 

• Applicant’s requiring federal government background investigations or security clearances
• Positions with the fire department or fire protection district
• Positions with Washington law enforcement agencies (as cited by RCW 10.93.020)
• Positions as a first responders, dispatchers for 911 emergency communication systems, and dispatchers for emergency medical services
• Correction officer positions with jails, detention facilities, of the Department of Corrections
• Airline and aerospace industries 
• Safety-sensitive positions where impairment presents a significant risk of death. Employers must define their safety-sensitive roles via job descriptions, which must also be provided to applicants prior to a job offer.

Alternative Drug Screening in California and Washington

Since new legislation in California and Washington limits cannabis testing, you may be worried about impairment for specific positions and safety concerns. Let’s explore alternative testing options and how your organization can respond: 

Oral Fluid Testing

Oral fluid testing, sometimes known as saliva testing, has become more popular recently due to its ability to test recent drug use. Also, as of June, the United States Department of Transportation (DOT) published its final rule amending its drug screening regulations to allow for oral fluid testing. 

Oral fluid testing uses a person’s saliva to test for controlled substances. In terms of cannabis testing, this method can detect the presence of psychoactive cannabis metabolites within a short period after consumption, typically a few hours to a few days. Oral fluid testing provides a window of detection that can align with identifying impairment (or use while at work), rather than a person’s historical cannabis use. 

Oral fluid testing is gaining popularity with post-accident testing and situations where someone is suspected of being impaired on the job. Under the new California and Washington laws, drug screening is still allowed in these situations, and oral fluid tests can be used to maintain workplace safety. 

How Employers in California and Washington Can Respond

Since these new laws take effect on January 1, 2024, employers in California and Washington should begin to prepare their organizations for the changes. As usual, employers are urged to consult legal counsel regarding their organization’s policies before January 1. 

Let’s explore the following considerations for employers to help ensure compliance and maintain a safe and productive workplace:

Review and Update Your Drug Testing Policy

This is the first step to preparing your organization for the new screening regulations coming in January. Start by reviewing your current policies and operating procedures to identify what aspects need revision. Then you can begin revising your drug testing policies to align with and be in compliance with the requirements of the new laws. Employers without exceptions should consider the following actions:

• Ensuring policies clearly state applicable and permissible circumstances for drug testing, pre-hire, and post-hire.
• Evaluating when testing will occur and what methods of testing will be used to comply with these new laws. 
• Consider oral fluid testing, which is the only method currently available to detect delta-9 THC and no other non-psychoactive cannabis metabolites. Testing via urine or hair will not be in compliance with these new laws.

Fix Necessary Job Roles and Postings

Employers in Washington should prioritize identifying any safety-sensitive positions within their organization that may be subject to cannabis testing. Once identified, work to clearly define these positions including their job duties, expectations, and appropriate testing and compliance with safety requirements. You should also make these same disclosures in safety-sensitive job postings.  

In California, no express exemptions exist for employer-defined safety-sensitive positions. However, California employers must still adhere to the specific exceptions defined by the statute. 

Communicate, Educate, and Facilitate

Proactively communicating with your employees and educating them on these new changes can help make the organization’s transition easier. Be sure to communicate your revised drug testing policies, the reasons behind the updates, and your organization’s continued commitment to their safety and well-being. This is also a good time to provide your employees with relevant resources for them to seek clarification or ask questions. 

Drug Screening with Verified First

Managing an entire drug screening program amidst these changes can be challenging, but you don’t have to do it alone. No matter where you are with your drug testing process, Verified First can help. Need help revamping your drug screening program? Verified First offers three different drug screening solutions to meet your needs, including a random drug screening program option. Reach out to us to get started.