New California Law Prevents Employers From Taking Action Against Employees Based Solely on Cannabis Use Away From Work

Drug screenings form a routine part of many hiring processes, but a new law may require employers to review this practice. The law, AB 2188, signed by Gov. Gavin Newsom on Sept. 18, 2022, amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against workers in hiring, termination, or any term and condition of employment, solely because the worker consumes medical or recreational cannabis outside of the workplace.

The law, which goes into effect Jan. 1, 2024, adds California to an increasing list of states enacting workplace protections for state-legal cannabis use outside of the workplace. It will prohibit employers from, for example, penalizing or terminating an employee for admitting to using cannabis while off duty and away from work, or refusing to hire a candidate for failing a drug screening test, if that test detects past use as opposed to active impairment. 

AB 2188 does nothing to change the requirement that employers maintain drug- and alcohol-free workplaces, nor does the law give employees license to possess, be impaired by, or use cannabis while on the job. Additionally, employers may still base employment decisions on results from tests that detect active impairment.

Impact on Testing

AB 2188 allows employers to continue to utilize drug testing, so long as the methods used do not screen for “nonpsychoactive cannabis metabolites.” Employers should take note that most drug tests currently relied on, however, do exactly that.

When cannabis is consumed, metabolites of the psychoactive molecule THC are circulated and stored in cells throughout the body. Testing issues arise because these metabolites remain psychoactive for, at most, a few hours but remain present in the body in a nonpsychoactive form for up to several weeks (or longer in the case of chronic users). Because most current tests simply detect the presence of any cannabis metabolite, they fail to distinguish between psychoactive and nonpsychoactive metabolites as the law requires.

Exceptions and Prohibitions

AB 2188 contains several exceptions, including for employers in the building and construction trades, certain federal employers or contractors, or positions requiring a federal government background check or security clearance.

Employer Takeaways

Employers should review their company policies respecting cannabis use and, if necessary, bring them into alignment with AB 2188. If employers utilize drug screening, they also should review the screening method used to ensure that it detects psychoactive THC metabolites or impairment, and not merely the presence of nonpsychoactive metabolites. If you need any assistance interpreting or complying with AB 2188, please contact Payne & Fears LLP.