New California Bill Protects Employees’ Off-Duty Marijuana Use

19 September 2022 Labor & Employment Law Perspectives Blog

On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which now awaits approval from Governor Gavin Newsome.  If signed into law, the bill would become effective on January 1, 2024. 

AB 2188 serves as an amendment to the state’s anti-discrimination law, the California Fair Employment and Housing Act, and would make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either (i) the use of cannabis off the job and away from the workplace, or (ii) taking an employer-required drug screening test that detects non-psychoactive cannabis metabolites in an employee’s urine, hair, blood, urine, or other bodily fluids.

Notwithstanding the prohibitions contained in AB 2188, the law still permits employers to restrict on the job marijuana use and maintain drug-free workplaces.  Indeed, the bill specifically allows employers to prohibit employees from possessing, being impaired by or using marijuana while on the job and to make employment decisions based on “pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.”  Moreover, the bill states that nothing in its language “affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” or “any other rights or obligations of an employer specified by federal law or regulation.” 

Additionally, the bill includes carve-outs for employees in the building and construction trades, and will not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance. The bill also does not pre-empt other laws requiring applicants or employees to be tested for controlled substances, including laws relating to the receipt of federal funding or entering into federal contracts.

If AB 2188 is signed by Governor Newsome, California would become the latest state with legalized marijuana to implement statutory protections for workers that would prohibit discrimination on the basis of off-the-clock recreational use.  That said, there would inevitably be questions related to the tension arising from the bill’s prohibitions on discrimination and the provisions allowing employers to enforce drug-free workplace policies, including pre-employment drug-screenings that do not test for non-psychoactive cannabis metabolites. Governor Newsom has until the end of September to sign or veto the bill. Accordingly, California employers are encouraged to work with their employment counsel at Foley to review and update drug-free workplace and testing policies to ensure compliance with the bill, should it become law.

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