CA Protects Off-Duty Cannabis Use

Recently, California Governor Gavin Newsom signed Assembly Bill 2188 (AB 2188) into law, protecting against discrimination for an employee’s off-duty cannabis use. In brief, AB 2188 amends the California Fair Employment and Housing Act (FEHA) to expand California’s longtime cannabis-friendly legislation into the workplace for the first time. The signing of AB 2188 makes California the leading state on the issue, even as other states consider the implications employees’ marijuana use may have on the workplace. Earlier, Nevada and Washington D.C. set opposing legal precedence regarding off-duty cannabis use.

Overview of Marijuana Laws

While recreational marijuana use remains illegal federally as a Schedule 1 drug, California law has conflicted with federal law. For example, the Compassionate Use Act of 1996 made the medical use of marijuana legal in California with a physician’s recommendation. Meanwhile, California’s Proposition 64: The Adult Use of Marijuana Act legalized specified personal use and cultivation of marijuana for adults at least 21 years of age. While these laws protect individuals from criminal prosecution in the state, they do not apply any protections to the workplace. However, AB 2188 introduces, for the first time, new protections for employees’ off-duty cannabis use.

Applying AB 2188 to Off-Duty Cannabis Use

Specifically, AB 2188 addresses worker impairment arising from off-duty cannabis use. Typically, the potentially impairing component in cannabis is tetrahydrocannabinol (THC). AB 2188 introduces new limitations to employment drug screening tests that isolate THC. In detail, AB 2188 adds Section 12954 to California’s code to clarify that:

• after it is metabolized, THC is stored in the body as a non-psychoactive cannabis metabolite; and
• metabolites in the body do not necessarily indicate active impairment.

This may prove an important distinction, as most current drug tests can show the presence of these non-psychoactive metabolites. However, this may not indicate that the individual is impaired when they took the test. Section 12954 acknowledges alternative drug tests that correlate more effectively with active impairment. Overall, AB 2188 amends the FEHA to make it illegal for an employer to discriminate against employees or applicants based on their off-duty cannabis use. The protections are limited to adverse employment actions taken because a drug screening test found non-psychoactive cannabis metabolites in the individual. Conversely, employers may still make these employment decisions based on “scientifically valid” drug screening tests that do not screen for non-psychoactive cannabis metabolites. In any case, the law does not protect a worker’s marijuana use on the job or limit an employer’s prerogative to maintain a drug-free workplace free from recognized safety hazards.

Employer Takeaways

In conclusion, AB 2188’s protections for off-duty cannabis use go into effect on January 1st, 2024. At that time, the amended FEHA will limit how and when employers may test employees for cannabis. Additionally, the law will limit how employers may use those specific drug test results. California employers should review their existing drug screening, hiring, discipline, termination, and drug policies ahead of the changes. Reviewing processes now will ensure compliance at that time. Also, AB 2188 includes exceptions for certain industries, such as construction and jobs that require a federal background investigation. Finally, as several states may follow California’s lead in weighing the legality of off-duty cannabis use with its effect on the workplace, employers in every state need to be ready for any changes headed their way. Therefore, employers should actively monitor their state’s lawmaking on the subject. Currently, what is permitted on workplace drug policies can differ from state to state. This is another fact to consider, especially for multi-state employers. To ensure compliance with AB 2188 and prevent potential legal issues, employers should implement a wrongful termination prevention program that includes clear policies on drug testing, impairment, and off-duty cannabis use. This program should be designed to avoid discrimination based on non-psychoactive cannabis metabolites, while maintaining a drug-free workplace where necessary. Additionally, employers should regularly review and update their drug policies to stay aligned with state-specific laws, ensuring they are equipped to handle any employee termination or disciplinary action fairly and legally.