California & Washington

Last year’s biggest development was the issuance of final oral fluid testing regulations from the U.S. Department of Transportation (DOT). This year, the single most captivating issue so far involves new laws in California and Washington that, among other things, restrict traditional drug testing methods such as urine testing that solely reveal the presence of the non-psychoactive metabolite of cannabis.

However, both laws contain language that suggests that drug testing methods that reveal Δ9-tetrahydrocannabinol, the psychoactive form of THC often referred to as the “parent” drug, is acceptable. This has resulted in many employers and drug testing providers turning to alternative testing methods that meet the laws’ new requirements, most notably lab-based and rapid-result oral fluid and, to a lesser extent, breath THC testing, both of which are permitted in each state.

Nearly 47% of drug testing providers in Current Consulting Group’s 2024 Drug Testing Industry Survey indicated they have clients who are subject to the new laws in California and Washington. Another 45% said they do not. Nearly 8% said they were unaware of these new laws. Further, 67% said they have had clients discontinue testing for marijuana in light of the new laws; 33% said they have not.

According to the survey, among participants’ clients that have decided to continue testing for marijuana in California and Washington, 62.5% have added or switched to oral fluid testing, while 7.5% have added or switched to breath THC testing.

“The new laws in California and Washington are already changing how employers look at drug testing,” said Todd Bailey, founder of Premier Biotech. “This year’s drug testing industry survey shows that companies in those states are starting to adjust their drug testing programs, switching primarily to oral fluid testing. And we’ll likely see more states pass similar laws, which will result in more companies switching to oral fluid testing.”

Premier Biotech’s OralTox was voted the #1 recognized brand in rapid-result oral fluid testing in the brand-name recognition section of Current Consulting Group’s industry survey. “It is important for drug testing providers to understand that these two laws do not prohibit employers from testing applicants and employees for marijuana,” Bailey said. “However, they require employers to use testing methods that reveal parent THC, which is possible with oral fluid testing.”

A relatively new technology, THC breath testing, also detects parent THC and is also an option in California and Washington. “There is a growing list of companies throughout the country that have started using breath THC testing in conjunction with other testing methods,” said Aaron Atkinson, Vice President of Marketing for Hound Labs, a leading provider of breath THC tests. “In today’s age of legal marijuana, advanced drug testing methods such as THC breathalyzers make it possible for employers to comply with legal marijuana laws without compromising their commitment to workplace safety.”

When survey participants were asked if they were advising clients to stop testing for marijuana in these states, 14% said yes and 86% said no. However, suggesting to clients that they drop marijuana from their drug-test panel is unnecessary. Drug testing providers and employers should be aware of the following facts in both states:

Drug testing is still permitted.
Testing for marijuana is still permitted.
Prohibiting employees from being under the influence of marijuana while on the job is still permitted.

Both states use similar language in their laws to clarify that their laws do not prohibit an employer from relying on “scientifically valid” drug screening “conducted through methods that do not screen for non-psychoactive cannabis metabolites.” This strongly suggests that neither law was intended to stop employers from testing for marijuana, but rather to direct how testing for marijuana can occur.

The fact that oral fluid testing is “scientifically valid” was confirmed in 2019 when the Substance Abuse and Mental Health Services Administration (SAMHSA) issued final guidelines for lab-based oral fluid testing of federal employees. The notice in the Federal Register included this language:

“The scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established and the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used in federal programs with the same level of confidence that has been applied to the use of urine.”[i]

While the new laws in California and Washington expand the protections of marijuana users, they do not strip employers of their right to maintain drug-free workplace programs that include marijuana restrictions. In California, for example, the new law states: “Nothing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects 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 federal law or regulation.”

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[1] https://www.samhsa.gov/sites/default/files/programs_campaigns/division_workplace_programs/final-mg-oral-fluid.pdf