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Section 12954 -When is it unlawful for an employer to discriminate based on cannabis use?
New California Law to Take Effect January 1, 2024
The following law will be taking effect on January 1, 2024. The Law does NOT change Federal Testing Programs and the law provides several exemptions that many employers fall under. We have included the law for reference. We are advising employers to begin by reviewing the law with their legal counsel to determine if the law will apply to them.
Section 12954 – [Operative 1/1/2024]
(a)
(1) Except as specified in subdivision (c), it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(A) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.
(B) An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
(2) This subdivision does not apply to an employee in the building and construction trades.
(b) Except as specified in subdivision (c), it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.
(c) Information about a person’s prior cannabis use obtained from the person’s criminal history is subject to subdivisions (a) and (b), unless the employer is permitted to consider or inquire about that information under Section 12952 or other state or federal law.
(d) This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by state or federal law or regulation.
(e) This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
(f) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
(g) This section shall become operative on January 1, 2024.
Ca. Gov. Code § 12954
In light of the limitations the new laws in California impose on drug testing, employers may consider the following practical considerations to help ensure compliance and maintain a safe and productive workplace. Employers are urged to review their drug testing programs, consult their legal counsel, and make any necessary changes to comply with the new laws by January 1, 2024.
The following is a checklist with some steps to take to prepare for January 1, 2024.
- Review the law and determine how it applies to your company.
- Once a determination has been made, contact COMP (and if applicable your MRO) if any protocol changes are needed to accommodate alternative testing methods to your Non-DOT testing program.
- Update your policies as needed. Employers must review and revise their drug testing policies to align with the provisions of the new laws. Employers not subject to an exception must remove any pre-employment marijuana testing requirements that test or report non-psychoactive cannabis metabolites and ensure that policies clearly outline the permissible circumstances for drug testing, such as post-accident or suspicion-based situations. Even if the law does not apply to your company, we advise something should still be noted and added to your policy.
- Educate all staff on any policy updates, even if your company does not fall under this requirement, proactively educate employees about the changes brought about by the new laws. Communicate the revised drug testing policies if any, the reasons behind the changes, and the continued commitment to maintaining a safe work environment.
- Provide resources for employees to seek clarification or address any concerns.
Employers are urged to review their drug testing programs,
consult their legal counsel, and make any necessary changes
to comply with the new laws by January 1, 2024.
WHAT IF I NEED A SALIVA DRUG TEST?
Oral Fluid (Saliva) Swab Drug Testing Services Now Available COMP
COMP is your go-to source for all your drug testing and screening services. Empower your organization with hassle-free, accurate tests tailored for employers like you. Beginning January 1, 2024 COMP will be offering lab based Non-Nida Oral Fluid (swab) Drug Testing, to help comply with the new laws. If you need further information please email: info@cenocc.com.
In compliance with California’s new employment-related cannabis laws COMP now offers convenient and reliable lab-based Oral Fluid drug screening. Our Saliva Drug Testing services include a 5-panel – DOT ’look-a-like’ (Marijuana (THC), Cocaine, Amphetamines, Opioids and Phencyclidine (PCP)), and a 7-panel (5 panel plus Benzodiazepines and Barbiturates). With COMP’s extensive drug testing experience, you can trust us to deliver rapid and dependable results, ensuring a safe and productive workplace.
What is Oral Fluid (Saliva) Drug Testing?
An Oral Fluid drug test, also known as a Saliva drug test or Mouth Swab drug test, is a non-invasive method to detect the presence of illegal drugs or drug metabolites in a person’s saliva. Oral Fluid drug tests can detect a wide range of drugs. Unlike some other drug testing methods, such as urine tests, saliva drug tests offer a shorter detection window. Most drugs can be detected in saliva less than an hour after use. They will typically remain detectable for 5-48 hours depending on how much was taken and how the drug was administered. This makes them particularly useful for identifying recent drug use.
Oral fluid testing requires a small sample that is collected under direct supervision. Because collections are observed, oral fluid testing is considered a tamper-resistant screening method, in that, it’s difficult for a donor to cheat or adulterate their sample.
How long does it take for Saliva Screening Results?
The time it takes to receive lab-based saliva drug test results for employment screening can vary depending on several factors, generally, you can expect a turnaround time of 1 to 3 business days after the sample is collected. Turnaround is typically 1-2 business days for negative results. If confirmatory testing is necessary, results may take longer. Positive results are confirmed, reviewed, and typically reported within 72-96 hours of receipt.
We at COMP invite you to take the next step towards a safer tomorrow. Join the list of satisfied organizations who have partnered with us, securing their workplace with confidence and improving their productivity like never before.
Frequently Asked Questions
Why should my company conduct Oral Fluid drug testing for employees?
Oral Fluid drug testing can help maintain a safe and productive workplace by identifying drug use that may impair job performance and pose safety risks. It promotes a drug-free environment, reduces accidents, and improves overall employee well-being.
What drugs can Oral Fluid drug tests detect?
Oral Fluid drug tests can detect a range of commonly abused drugs, including marijuana (THC), cocaine, amphetamines, opioids, benzodiazepines, and methamphetamine, among others. You can choose the drugs you want to drug test for based on the panels you choose.
Can Oral Fluid drug tests be used for pre-employment screenings?
Yes, Oral Fluid drug tests are commonly used for pre-employment screenings to ensure that potential hires are drug-free and meet the company’s drug policy requirements. Compared to urine drug tests for pre-employment drug screening, saliva drug tests can offer reliable drug testing results without any complications.
What are the differences between Oral Fluid, Urine and Hair Follicle drug tests, and how can employers decide which test is most suitable for their workplace drug screening program?
Oral Fluid, urine and hair follicle drug tests differ in sample collection methods and detection windows. Drugs in hair may be detectable for up to 90 days, whereas drugs in urine are generally detectable for one to seven days (or longer in chronic users) and in oral fluid from five to 48 hours. Employers should consider factors such as testing purpose, desired detection period, and cost when deciding which test to use for their workplace drug screening program.