Assembly Bill 2188 (AB 2188) updates the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating, terminating, or otherwise penalizing an employee or applicant because of their use of cannabis.
AB 2188 protects an employee’s use of cannabis when off the job and away from work. This means that employers will not be able to rely on evidence of prior cannabis use or inactive cannabis metabolites to make employment decisions.
AB 2188 makes it unlawful for an employer to discriminate, terminate, or otherwise penalize an employee, if the action is based upon either (1) the employee/applicant’s use of cannabis off the job and away from the workplace; or (2) an employer-required drug-screening positive for non-psychoactive cannabis metabolites.
This legislation has limits; employers are able to make employment-related decisions based on tests that address an employee’s current impairment. This means that employees that have active cannabis metabolites or are actively using cannabis at work can be terminated, disciplined, or otherwise penalized.
AB 2188 also affects applicants for jobs. AB 2188 discusses in particular the use of “scientifically valid pre-employment drug screening” allowing testing to be conducted through methods that do not screen for non-psychoactive cannabis metabolites. This means that employers are allowed to drug test applicants as long as the test does not screen for inactive cannabis use.
The change in law will become effective on January 1, 2024. Until effective, applicants and employees should be careful about any cannabis use even if inactive or away from work. AB 2188 will apply to any employer with five (5) or more employees. AB 2188 has several exemptions and exceptions. It is important to note that AB 2188 does not apply to applicants applying to positions that require a federal background investigation or security clearance. AB 2188 will not preempt state or federal laws and regulations requiring applicants or employees to be tested for controlled substances as a condition of employment. This means that if the position has a federal or state mandate requiring a certain test for controlled substances AB 2188 will not impact those requirements.
Going forward after January 1, 2024, employers will need to demonstrate that any alleged cannabis use impacted the employee on the job while at work prior to penalizing any applicants or employees. As employers introduce new policies in line with the new legislation, associations will want to request meet and confers with their departments to ensure policies are in line with the updated statute. This legislation will result in huge changes in how employers handle off-the-job and away-from-work cannabis use, but members should remember the legislation has not taken effect yet.
