Beginning January 1, 2024, employees who recreationally use cannabis (marijuana) outside of the workplace will be legally protected in doing so, and cannot be subject to employment actions merely because of their off-duty use of the drug. The new law, Assembly Bill (AB) 2188, was signed by Governor Newsom on September 18, 2022.
Background
California’s Fair Employment and Housing Act (FEHA) sets forth protections and safeguards for employees within protected classes and prohibits employers from subjecting such individuals to discrimination, harassment, or adverse employment actions as a result of an individual’s protected status. Such classes are: race, religion, color, national origin, ancestry, physical or mental disability, marital status, sex or sexual orientation, gender (including gender identity or gender expression), and military and veteran status.
AB 2188 adds cannabis users to FEHA’s protections. Under the new law, it is unlawful for employers to discriminate against employees or applicants based on:
(1) the individual’s “use of cannabis off the job and away from the workplace;” or
(2) the results of an “employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.”
May Employers Test for Cannabis Use?
It depends. Under AB 2188, employers may not drug-test employees for “non-psychoactive cannabis metabolites,” which can be detected weeks after the body has metabolized the psychoactive compound, tetrahydrocannabinol (THC). Positive tests for non-psychoactive compounds merely indicate that the individual has consumed cannabis in the last few weeks – not that the individual is or was impaired on the job.
However, the new law does not prohibit an employer from testing for the psychoactive cannabis metabolites (THC) or from impairment tests in appropriate situations, such as pre-employment, post-accident, or when an employer has a reasonable suspicion an employee is impaired on the job.
Also, AB 2188 does not prevent an employer from taking action against an employee or refusing to hire an applicant if the individual possesses, is impaired by, or uses cannabis on the job.
Federal Backdrop
While the federal government continues to classify cannabis as an illegal Schedule 1 Substance under the federal Controlled Substances Act, recreational use of the drug continues to be legalized in a growing number of states. In addition to the legalization of recreational cannabis use, some states, like California, are also enacting legal protections for individuals who recreationally use the drug.
Exceptions to AB 2188
There are specific carve-outs from AB 2188 that the new law will not protect. It does not preempt federal contract requirements. Also, applicants and employees in the building and construction industry, and those required to undergo federal government background investigations or security clearances are excluded from the protections of AB 2188.
Takeaway
California employers may continue to enforce drug and alcohol-free workplace policies and may drug test as permitted by law. However, beginning on January 1, 2024, they may not discriminate or take adverse action against applicants and employees for using cannabis off-duty.
The attorneys at Duggan McHugh are available to answer your questions about your drugfree workplace policies and compliance with AB 2188.