By Ellen E. Cohen & Kishaniah Dhamodaran on September 19, 2022 Jackson Lewis

On September 18, 2022, Governor Newsom signed California Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings, or (2) 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.

An employer can still refuse to hire an applicant based on a scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites. These alternative tests include impairment tests, which measure a person against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol (THC) in an individual’s bodily fluids. THC is a chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After THC is metabolized, it is stored in the body as non-psychoactive cannabis metabolites, which do not indicate impairment, only that an individual has consumed cannabis recently.

The bill does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace. The bill does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

The bill also exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades, and applicants and employees in positions requiring a federal background investigation or clearance.

AB 2188 takes effect on January 1, 2024.

Question:   Do we have to get permission to run a background check? Answered by the HR Experts

The short answer is yes: the Fair Credit Reporting Act (FCRA) requires you to get permission from your applicant or employee before conducting a background check. Aside from this legal requirement, telling applicants what to expect as part of the selection process is considered a professional courtesy, especially if you’ll conduct background checks, which dig into history that may not be directly related to the work they will be doing.

The FCRA has pretty specific notice requirements. For example, you also need to provide the applicant or employee a summary of their FCRA rights and the appropriate adverse action letters if you decide not to hire them (or terminate an existing employee) because of the background check.

Employers should also keep in mind antidiscrimination protections. Specifically, using criminal histories as a screening tool can have a disparate impact on race and national origin. Because of this, employers should only eliminate applicants based on their criminal history if doing so is job related and consistent with business necessity.

CalWorkSafety & HR uses SmartHIRE which has all the forms needed for compliance.  On occasion we use other security firms such as TMAP and Santoni Investigations of Lake Forest.