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The California legislature recently passed AB 2188, the first California law providing workplace protection to cannabis users. AB 2188 goes into effect on January 1, 2024, and will prohibit most California employers from discriminating against both prospective and current employees for their off-duty use of cannabis.
Unlike various other states, when California legalized recreational cannabis in 2016, it did not include a non-discrimination provision for legal cannabis use. In fact, the law legalizing recreational cannabis specifically stated that it does not impact employer drug policies. In 2008, the California Supreme Court in Ross v. Raging Wire ("Ross") upheld an employer’s right to deny or terminate employment when an applicant tests positive for cannabis on a pre-employment drug test, even where the applicant is a medical marijuana user. 42 Cal.4th 920, 926, 933. Now, AB 2188 forbids employers from taking adverse actions against employees for failing a drug test for off-duty cannabis use.
The new law amends California’s Fair Employment and Housing Act (“FEHA”) by adding Government Code section 12954, making it unlawful for an employer to discriminate against a person for:
- Their use of cannabis off the job and away from the workplace (though, the new law does not permit employees to possess, be impaired by, or use cannabis on the job); or
- Testing positive in an employer-required drug screening for “nonpsychoactive cannabis metabolites.” Nonpsychoactive cannabis metabolites are metabolized Tetrahydrocannabinol (THC) in the body. THC is the chemical compound found in cannabis that can indicate impairment and cause psychoactive effects. Metabolites do not indicate impairment, but can indicate that an individual has consumed cannabis in the last few weeks.
The following are exempted from the law:
- Employees in the building and construction trades;
- Those required by state or federal law to test employees for controlled substances, including as a condition of receiving federal funding or federal licensing-related benefits; and
- Applicants or employees hired for positions that require a federal government background investigation or security clearance.
An employer can continue to maintain a drug and alcohol-free workplace, as defined under the California Health and Safety Code. Accordingly, an employer may (1) prohibit drug use, possession, or impairment on the job and (2) test for marijuana impairment by way of performance-based impairment testing or THC testing. Any testing should avoid screening for nonpsychoactive chemicals in the body.
As the law continues to limit the ability to penalize employees for off-duty cannabis use, employers should review their drug and alcohol policies before the new law takes effect in 2024. If employers wish to continue testing prospective and current employees for cannabis, they should ensure that they have a strong drug and alcohol-free workplace policy in place, unless they are otherwise exempt, and discontinue any nonpsychoactive cannabis metabolite testing.
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