AB 2188 Leaves California Employers’ Policies on Marijuana Use up in Smoke

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On September 18, 2022, Governor Gavin Newsom signed AB 2188 into law, which prohibits employers from taking any adverse employment action against an employee in conjunction with an employee’s off-duty marijuana use.

AB 2188 makes it unlawful for employers to “discriminate against a person in hiring, termination, or any term or condition of employment” for any of the following reasons:

  • An employee’s use of cannabis and cannabis products off the job and away from work; or
  • Failing an employer-mandated drug screening for having “nonpsychoactive cannabis metabolites in their hair, blood, urine, or body fluids.”

If an employer wishes to punish an employee for marijuana-related conduct, it must show the employee was either in possession of or under the influence of marijuana while in the workplace.

For employers that rely on drug screenings to identify marijuana use, this means employers must reevaluate how they conduct screenings and use tests that differentiate between an employee who is currently under the influence of marijuana versus one who previously used marijuana.

In this article, we review California’s long history of regulating the use, production, and sale of marijuana; analyze the effect AB 2188 has on California employers; and briefly discuss immediate steps employers may take to continue promoting a drug- and alcohol-free workplace.

Brief History of Cannabis Legislation in California

California has always been at the forefront of introducing legislation to legalize and regulate the sale and use of cannabis.  The first of many California laws enacted to address cannabis use was Senate Bill 95, known as the “Moscone Act.”  Enacted in 1976, the Moscone Act was the first pierce of legislation that decriminalized marijuana use in California, and effectively eliminated prison sentences for minor offenders.  This bill was seen as revolutionary in that it was one of the first times a state successfully introduced legislation in an attempt to reduce the stigma of marijuana use.

The next and arguably most revolutionary California law on cannabis is Proposition (Prop) 215, nicknamed the “Compassionate Use Act” (CUA).  Prop 215 was a voter-initiated law that allowed for the use of medical cannabis pursuant to a valid physician’s recommendation.  Prop 215 not only allowed patients and caregivers to possess cannabis for personal medical use, but it also permitted certain patients to cultivate cannabis as well, the first time consumers were given the ability to do so.  However, as discussed further below, the CUA was not seen as having any effect on California’s employment laws, nor did it require employers to accommodate marijuana use for current or prospective employees.

After Prop 215 was enacted into law, California started taking steps to regulate physicians prescribing medical cannabis.  In 2015, California passed the Medical Marijuana Regulation and Safety Act, a set of three bills that set standards for physicians prescribing medical cannabis, instituted regulations on marijuana cultivation, and mandated reporting of movement of commercial cannabis products.

Finally, in 2016 California took the biggest step in cannabis legislation when it passed Prop 64, where California legalized nonmedicinal use of cannabis products for consumers 21 years of age or older.  Prop 64 also further decriminalized marijuana use in that individuals arrested for selling marijuana would no longer be charged with a felony with some exceptions.

Evolution of Marijuana Use and the Workplace

Although cannabis use gradually became more widespread and acceptable over the years, California courts still preserved employers’ ability to maintain stringent rules regarding drugs and alcohol in the workplace.  For instance, in Ross v. RagingWire Telecommunications,[1] the California Supreme Court affirmed the dismissal of an employee who failed to pass a drug test as a prerequisite for employment with defendant RagingWire Telecommunications, Inc.  Although the employee was using marijuana pursuant to a presumably valid prescription from his physician issued under the CUA, the Court found that nothing in the CUA “intended … to change employment law,” and maintained that employers may continue requiring preemployment drug tests and take illegal drug use into consideration in making employment decisions.

The Court’s opinion in Ross allowed employers to breathe a sigh of relief in the wake of all the marijuana legislation passed in California.  However, this sigh of relief proved to be brief after the passage of Prop 64 and legalization of recreational marijuana use.  Under Labor Code § 96(k), employers are prohibited from taking adverse action against an employee for engaging in otherwise lawful off-duty conduct.  For the longest time, this code section was interpreted as prohibiting employers from stopping employees from holding outside employment.  With California legalizing recreational marijuana, employers were put in a hazy position with respect to restrictions on employee marijuana use.

While employers could still prohibit on-duty and workplace use and possession of marijuana, the ambiguity came where the employee would test positive for marijuana, but claimed it came from off-duty use.

California’s Passage of AB 2188 and Effects on the Workplace

In a supposed effort to clear up confusion and provide additional protections to California employees, California passed AB 2188 to prohibit employers from punishing employees for truly off-duty use of cannabis.  Specifically, AB 2188 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.

Prior to the passage of AB 2188, employers that screened potential or current employees for drugs, either as a condition of employment or due to reasonable suspicion that the employee was under the influence, would do so through hair, urine, or blood tests.  However, most of these tests would not distinguish between an employee’s current impairment or past use given how long cannabis remains in one’s system.

Screenings for marijuana may show traces of cannabis from use that took place weeks before the actual screening.  This is due in part to the lingering presence of “nonpsychoactive cannabis metabolites,” which according to the legislature has “no correlation to impairment on the job.”  Now, employers may take an adverse employment action against an employee only for impairment on the job or at the time of the drug screening, but may not do so only for testing positive for nonpsychoactive cannabis metabolites.

Recognizing the fact that marijuana is still considered illegal under federal law, AB 2188 expressly exempts jobs that require federal clearance or background screening, any job that is statutorily subject to federal drug testing requirements, and certain building/construction trades.

Preparing for AB 2188 Moving Forward

As one can imagine, AB 2188 adds another layer of difficulty for employers to do business in California. Failure to comply with AB 2188 may result in employers being subjected to claims for discrimination or retaliation.  If a claimant were to succeed on these claims, the employer would potentially be liable for damages in the form of lost or future wages, emotional distress damages, statutory penalties, and attorney fees.

With AB 2188 going into effect on January 1, 2024, employers must take the following steps to ensure compliance with AB 2188:

  • Evaluate any policies and procedures regarding drugs and alcohol in the workplace with experienced legal counsel to ensure drug screenings are administered properly; and
  • Review how drug screenings are administered to ensure any drug tests take into consideration psychoactive cannabis metabolites to guarantee employees are not punished for off-duty marijuana consumption.

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