California Governor Gavin Newsom recently signed Assembly Bill 2188 (AB 2188) into law, which amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against employees or applicants for off-duty cannabis use that occurs away from the job site. This law recognizes the legal use of cannabis in California and employees’ right to be free from adverse employment decisions or other forms of discrimination when they are not impaired.
Before the law goes into effect, affected individuals should become acquainted with what the new law requires and does not require.
Overview of AB 2188
Many states and cities are currently protecting employees and applicants for their use of cannabis outside of work. California’s AB 2188 is similarly positioned, providing employees with the right to be free from discrimination based on cannabis use that does not affect or involve their workplace. Specifically, the new law will prohibit employers from discriminating against applicants or employees because they have:
- Used cannabis off the job and away from the workplace
- Tested positive for non-psychoactive cannabis metabolites in a drug screening test
If a covered applicant or employee is discriminated for either of the reasons above, they can file a complaint with the California Civil Rights Division.
What Does the New Law Do?
AB 2188 amends FEHA, California’s employment anti-discrimination law. The law explicitly provides for the following:
- THC is the chemical compound that causes cannabis’ psychoactive effects. However, it remains stored in the body as a non-psychoactive metabolite after some period of impairment.
- The presence of such metabolites does not indicate impairment.
- The purpose of drug tests is to identify workers or applicants who are impaired.
- Most drug tests for cannabis use only show the presence of non-psychoactive metabolites and have no correlation to impairment.
- Employers cannot discriminate against applicants or employees because they use cannabis off the job and away from the workplace or because a drug test shows they have non-psychoactive cannabis metabolites in their system.
- The bar on discrimination extends to hiring, firing, or modifying a term or condition of employment for the affected applicant or employee.
What Does the New Law Not Do?
The law does not allow employees to do any of the following activities related to cannabis while working:
- Possess it
- Be impaired by it
- Use it
Additionally, the new law does not preempt state or federal laws that require applicants or employees to be tested for any of the following reasons:
- As a condition of employment
- For the employer to receive federal funding or benefits related to federal licensing
- For the employer to enter into a federal contract
The new law does not require employers to stop drug testing employees or applicants. The law is only concerned with discriminating against people based off their use of cannabis off the job and away from the workplace. They can use scientifically valid drug tests to screen for current impairment.
Furthermore, AB 2188 expressly states that employers can make employment-related decisions based on scientifically valid preemployment drug screening through methods that do not test for non-psychoactive cannabis metabolites.
To Whom Does AB 2188 Apply?
AB 2188 applies to most employers. However, there are exceptions for the following types of workers:
- Employers with fewer than five employees
- Nonprofit religious associations or nonprofit religious corporations
- Employees in the building and construction trades
- Individuals who require a federal government background investigation or security clearance for employment
When Does This Law Go into Effect?
The law is scheduled to go into effect on January 1, 2024, which gives employers more than a year to revise their drug policies regarding cannabis use. The text of the law recognizes that there are many scientifically valid tests that do not test for non-psychoactive cannabis metabolites, so employers could ostensibly modify their policies so that they use these types of tests instead of the more commonly used tests that screen for non-psychoactive THC.
Discrimination Based on Cannabis Use Cases and Complaints
Employees in California who are discriminated against because of their off-duty cannabis use can seek legal advice and representation from the experienced employment law attorneys at SANFORD A. KASSEL, a Professional Law Corporation. Our lawyers stay updated on the most recent changes in the law. You can rely on our extensive experience to help you understand and protect your rights. We encourage you to contact our office today for a confidential consultation with an experienced employment lawyer.
