Hunton Employment & Labor Perspectives

On September 18, 2022, California Governor Gavin Newsom signed into law Assembly Bill (“AB”) 2188, which prohibits employer discrimination based on employees’ use of cannabis off the job and away from the workplace.  While recreational use of cannabis, or marijuana, has been legal in California since 2016, the new law goes farther in specifically providing protections for employees who consume the substance.  AB 2188 makes California the most recent state to provide workplace protections for use of marijuana away from the workplace.  The bill will become effective beginning January 1, 2024.

AB 2188 amends the California Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate again a person in hiring, termination, or any term or condition of employment based on (i) the “person’s use of cannabis off the job and away from the workplace,” or (ii) an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”  The new law makes clear that employers are still permitted to make employment decisions based on tests for marijuana impairment as long as such tests do not rely on the presence of nonpsychoactive metabolites that are present in the body after consuming marijuana and specifically Tetrahydrocannabinol (THC), the substance that is primarily responsible for the psychoactive effects of marijuana use.  These metabolites can remain in the body for weeks after an individual has consumed marijuana.  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.”

The law also includes several carve-outs for specific industries and employees.  AB 2188 will not apply to employees in the building and construction trades or applicants or employees hired for positions that require a federal government background investigation or security clearance.  The bill also explicitly states it 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, federal licensing-related benefits, or entering into federal contracts.

California employers may want to review and update their workplace drug policies and procedures for drug testing, if applicable.