Up in Smoke: AB 2188 Outlaws Discrimination in Employment in California Based on Employees’ Off-Duty Cannabis Use (But It Doesn’t Take Effect until 2024)

On September 18, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188, aimed at preventing employers from penalizing workers for using marijuana during their off-work hours if such use does not impair them at work.

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What Is Protected Under the New Law?

AB 2188 is broadly designed to prohibit adverse employment actions against employees who use cannabis away from work in a manner that does not impair them from doing their job in any way. But what technically is (and is not) protected under the new law is more nuanced.

Specifically, AB 2188 makes 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, if the discrimination is based upon any of the following:

  1. The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
  2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolities in their hair, blood, urine, or other bodily fluids.”

What Is Not Protected Under AB 2188?

Coming to work “high” is not protected. Specifically, AB 2188 provides:

“Nothing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.”
AB 2188 distinguishes between recent use of cannabis (i.e., getting intoxicated at or shortly before work, which may still be validly prohibited by employers) and non-impairing traces of cannabis in employees’ systems that indicate past use of marijuana. The law defines tetrahydrocannabinol (THC) as the chemical compound in cannabis that may indicate impairment and cause psychoactive effects. Once THC is metabolized (i.e., it has been in the body for a certain amount of time), it is stored in the body as a nonpsychoactive cannabis metabolite—such nonpsychoactive metabolites “do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.” It goes on to state: “While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.”

When Does AB 2188 Take Effect?

January 1, 2024 – to allow employers (and testing vendors) time to prepare for compliance.

To Whom Does AB 2188 Apply?

Only to employers with employees in California (and subject to some statutorily defined exceptions).

Are There Exceptions to the Protections in the New Law?

Yes, there are exceptions. For safety reasons, certain industries and categories of workers are excluded from AB 2188: building and construction trades, federal contracts, federal recipients, federal licensees required to maintain drug-free workplaces, and any occupations that are required by federal or state laws to be tested for controlled substances (e.g., commercial pilots and truckers, positions that require a federal security clearance or background investigation, etc.).

Furthermore, AB 2188 does not prevent employers’ ability to use pre-employment testing to screen candidates based on the presence of psychoactive cannabis metabolites (i.e., THC), or, as explained above, to test for drugs through methods that do not screen for nonpsychoactive cannabis metabolites. AB 2188 also does not preempt specific state or federal laws requiring drug testing of applicants and employees, including those that require drug testing as a condition of employment.

What Should Employers Do in Advance of the Law Going into Effect?

California employers should review their hiring processes, particularly any pre-employment drug screening protocols, as well as their policies and procedures relating to drug screening in connection with employment, discipline, and termination, to ensure compliance with AB 2188. Employers should also consider updating their internal HR practices to focus on employees’ conduct while they are performing their job duties, rather than relying on potentially outdated and prohibited drug tests, to determine whether they have reasonable suspicion that an employee is impaired while on the job.

For example, in the legislature’s view, as noted in AB 2188, “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites” to ensure compliance with the new law. In other words, the legislature is inviting employers to switch to different kinds of tests (when permitted) that only identify psychoactive / impairing levels of THC – such as tests that “measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.”

Unfortunately for employers, AB 2188’s guidance is far from precise. It does not define “nonpsychoactive cannabis metabolites,” nor does it provide clarity as to what “alternative tests” do not rely on the presence of nonpsychoactive cannabis metabolites. While drug tests that detect only recent use of cannabis are in development, such tests are not widely available at present (but likely will be by January 2024, given the demand created by this new law).

https://www.jdsupra.com/legalnews/up-in-smoke-ab-2188-outlaws-8664704/

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