By Pauline L. Duong, Esq.
The increasing popularity of cannabis in California has important implications for California employers and employees including those in the construction industry where on-the-job drug impairment could lead to safety issues. Importantly, it remains legal, under certain circumstances, to drug test employees and enforce zero-tolerance policies. Indeed, some trade associations like the Associated General Contractors of America continue to advocate for a zero-tolerance policy on cannabis use. But the California legislature continues to address cannabis use in and out of the workplace and expand protections for employees. Beginning this year, two new employment-related laws addressing cannabis use have taken effect in California, increasing protections for off-the-job cannabis use and preventing employers from requesting information about a job applicant’s cannabis use.
Off-Duty Cannabis Use
California’s Fair Employment and Housing Act (FEHA) already prohibits an employer from discriminating against employees and applicants based on a protected class, such as race, religion, gender, or disability. Under FEHA, an employer may not subject an employee to an adverse employment action (e.g. demotion, refusal to hire, or termination) based on a protected class. Effective January 1, 2024, Cal. Gov. Code § 12954(a) (formerly known as Assembly Bill 2188) now additionally protects employees from any adverse employment actions that result from off-duty cannabis use. Furthermore, Cal. Gov. Code § 12954(b) (formerly known as Senate Bill 700) provides that employers may not request information about prior use of cannabis from job applicants.
Employers can still require a drug-free workplace environment. Employees or applicants who are actively impaired at work or who bring cannabis to work may still be subject to adverse employment actions.
Drug Testing
Also effective January 1, 2024, Cal. Gov. Code § 12954(a) states that employers may not discriminate against employees based on the result of an employer-required drug test that reveals the presence of non-psychoactive cannabis metabolites. Most cannabis tests cannot detect the presence of tetrahydrocannabinol (THC), the chemical in cannabis that can induce psychoactive effects. Instead, these tests flag the presence of metabolites that are stored in the body after the THC has been metabolized. Such metabolites do not indicate impairment, just recent past use of cannabis.
Exception for Building and Construction Trades
Drug testing has for some time been restricted to “safety-sensitive” roles or government positions. Although safety-sensitive jobs vary based on workplace and responsibilities, they are typically roles in which alcohol or drug impairment could endanger the health and safety of others, property, or the environment. For safety reasons, these new cannabis laws exclude certain employees from the expanded discrimination protections described above, and those exempt employees may continue to be required to take drug tests as a condition of employment. These employees include those (1) certain workers in the building and construction trades; (2) required to undergo drug testing under state or federal law; (3) employees required to undergo federal government background investigations; (4) employees receiving federal funding or federal-licensing benefits; or (5) employees entering into federal contracts.
While many employees of NECA members could be exempt from these new laws, members should nevertheless carefully evaluate applicability to all employees, and consider reviewing and revising employment policies to distinguish between off-duty use from on-the-job cannabis impairment to mirror the new distinctions in the law. Members may also need to make clear and distinguish in their application materials and employee handbooks and policies that certain employees are excluded from these laws, for notice reasons.
Pauline L. Duong, Esq., is an associate attorney with the law firm of Dunn DeSantis Walt & Kendrick. Pauline’s practice is focused on the representation of businesses and business owners, particularly in employment law. She regularly counsels business owners on state and federal employment law questions and strategies.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.
You can find additional information and resources related to helping business owners and their businesses on the DDWK website.
