New California Law Heightens Cannabis-Use Protections for Employees and Job Applicants

by | Mar 14, 2023

Since 2016 when California legalized recreational cannabis use, there has been confusion about how off-duty cannabis (i.e., marijuana) use should affect employment policies. A new California law, AB 2188, addresses these issues surrounding employee cannabis use (along with offering a brief science lesson on THC and the metabolism). Effective January 1, 2024, the law will prohibit employers with five or more employees from discriminating against employees and job applicants using cannabis “off the job and away from the workplace.” The law will also limit the type of drug testing some employers may rely on when it comes to cannabis use. This law will be a significant change for California businesses. Below we explore what the bill encompasses and what it could mean for employers and employees.

As with similar laws concerning off-duty tobacco use and other nonwork-related activities, this law seeks to address employee’s activities outside of work within the framework of fair and equal hiring practices. The new law still permits employers to make hiring and employment decisions based on drug screening, so long as the screening is “scientifically valid” and uses “methods that do not screen for nonpsychoactive cannabis metabolites.” The term “nonpsychoactive cannabis metabolites” is defined in the new law as, essentially, what becomes of THC (the part of cannabis that can cause psychoactive effects) after it is metabolized and stored in the body. The law specifically calls out how science has developed to now include drug tests that “do not rely on the presence of nonpsychoactive cannabis metabolites.”

Importantly, this new law does not condone employee possession, impairment, or on-the-job use of cannabis. Rather, AB 2188 specifically prohibits employers from punishing employees for the following: (1) using cannabis and cannabis products off the job and away from work; and (2) failing an employer-mandated drug screening for having nonpsychoactive cannabis metabolites in their hair, blood, urine, or body fluids. It will still be illegal for employees to possess, be impaired by, or use cannabis while on the job. An employer can still maintain a drug-free and alcohol-free workplace under other applicable laws. The new law does not apply to employees in building and construction trades, or jobs requiring federal clearance or background screening. Other state and federal laws requiring drug testing for controlled substances still apply to jobs where there is federal funding, federal licensing-related benefits, or a federal contract. As such, employers should be familiar with these new guidelines and carefully consider existing drug screen policies.

Investigator’s Note: This new law could result in an increase of employee complaints from cannabis users. Cannabis-using employees may raise claims of being discriminated against based on off-duty use. Likewise, non-using employees may complain of cannabis-using employees being impaired on the job. These complaints may lead to workplace investigations. Like many workplace investigations, these specific investigations may prove challenging to conduct in-house without proper training or run the risk of the appearance of bias. Companies can consider contacting an experienced third-party workplace investigator for assistance to ensure that all claims are thoroughly investigated.

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