Changes Coming to Marijuana and Workplace Drug Testing

By William M. Gaito, Ph.D., J.D., CEAP
Teamsters Assistance Program of Northern Calif.

New State and Federal drug testing rules have been issued that will impact California workers in 2024 allowing additional specimen collection methods and testing procedures depending upon whether the employee is being tested under Department of Transportation (DOT) regulations or California State law.

Effective on Jan. 1, 2024, AB 2188 amends the California Fair Employment and Housing Act (FEHA) and prohibits employers from:

  • discriminating against workers in hiring, termination, or any term and condition of employment, solely because the worker consumes medical or recreational cannabis outside of the workplace or
  • using traditional drug tests capable of detecting only non-psychoactive cannabis metabolites (because the intent of the law is to detect impairment from marijuana on the job).

Therefore, except testing for marijuana uses by employees or applicants in:

  • the building and construction trades,
  • positions where drug testing is required by other state or federal laws or government contracts,
  • positions requiring a federal background investigation or security clearance,

employers will be required to use tests detecting active impairment and not just past use with tests that detect the drug itself, delta-9-tetrahydrocannabinol (D9THC). This is because metabolites remain detectable in urine and hair for days and sometimes weeks or months for chronic users, but the intoxicating effects of marijuana last only a few hours. Even with blood testing where D9THC is measured directly, a chronic user or medical user may have a detectable level every day and at all times despite not using immediately before or during work.

Oral fluid and breath testing for marijuana may be possible options.

The DOT issued a Final Rule permitting oral fluid testing on June 1, 2023. But, before DOT-covered employers can implement oral fluid testing, the U.S. Department of Health and Human Services (HHS) must certify at least two laboratories to conduct the testing, one lab to test primary samples and another to re-test contested samples. To date there are none.

So, while oral swab testing has been authorized as of today, it can’t be implemented until HHS issues its approvals: at least one lab to test primary samples and at least one more to re-test contested samples.

The oral fluid testing rule wasn’t passed in an effort to phase out urinalysis, the current most popular screening method. Rather it gives employers under DOT rules another option to use at their discretion. The Final Rule states, “With both drug testing methodologies being scientifically accurate and forensically defensible, there is no reason to eliminate either methodology,” and adds, “Similarly, we see no reason to mandate either methodology.”

Breath testing for marijuana is coming. Three US companies are developing breathalyzers for marijuana: Arizona based ElectraTect, Hound Labs (California) and Canada’s Cannabix Technologies. Last month, Hound Labs launched the first product on the market to advertise that it detects D9THC which would comply with the requirements of AB 2128.

Because the detection window for both oral and breath testing for marijuana is smaller and the tests are less expensive, these companies are putting millions of dollars into the technology, betting that law enforcement across the country will use a reliable and valid breathalyzer with results and technology that can hold up in court. Also, once employees become subject to breathalyzers at work, there will be perhaps an even bigger market selling directly to the public so legal marijuana users can determine their own THC levels.

One thing is for sure: The methods for collecting specimens and testing them for marijuana will continue to change and improve. There will be clearer detection times by which employers can feel safe determining if use was within a specific time frame and able to argue that an employee was impaired. THC levels for “impairment” undoubtedly will be determined much the same way alcohol levels exist for DUI rules as well as cutoff levels will be developed to determine “impairment.”

TAP and TARP will continue to provide information as things change.