California Bosses Must Prove Workers Are High Under New Pot Law


         Workers canít be disciplined for using cannabis in free time

         THC breathalyzers could detect marijuana use within hours


Tiffany Stecker, Bloomberg Law

Sept. 19, 2022


California employers have 15 months to figure out the best way to determine if employees are impaired and trying to do their jobs after smoking marijuana or eating cannabis-infused snacks.


Attorneys and scientists say thereís currently no way to do that accurately.


ďNone of these workforce drug tests are able to assess impairment,Ē said Barry Sample, senior science consultant for Quest Diagnostics Inc.ís Employer Solutions franchise.


California Gov. Gavin Newsom (D) on Sunday signed a measure (A.B. 2188) that prohibits employers from discriminating against workers who use cannabis in their off-work hours. The new law goes in effect Jan. 1, 2024.


Standard drug tests detect metabolites in urine and hair, the result of the breakdown of tetrahydrocannabinol (THC) molecules that can stay in oneís system for several days or, in some cases, weeks.


Because the THC detected in these tests canít determine if a marijuana userís brain function was impaired on the job, employers can no longer rely on them to settle the cause of an workplace accident, for example. The tests can still be used before a worker is hired, for construction jobs, and for positions that require federal oversight.


Supporters of the new mandate expect examinations to shift toward saliva tests, which can pick up THC ingested in the past 24 to 36 hours. Thatís a much narrower detection window than for urine tests, Sample said, though still not providing a definitive answer on whether someone is under the influence at the time of the test.


Tech companies are developing tools to shrink that window to just a few hours.


For instance, a machine thatís not yet on the market is promoted as being able to yield results within minutes. The developer, Hound Labs Inc., said it plans to sell the breathalyzers by the end of the year. Vancouver-based Cannabix Technologies Inc. said itís testing a similar device.


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