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New California Law Prohibits Employment Discrimination Based on Marijuana Use Outside of Work

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On Sept. 18, 2022, Gov. Gavin Newsom signed AB-2188 into law, which will become effective on Jan. 1, 2024.

This law will prohibit employers from engaging in adverse actions against applicants or employees for using marijuana outside of work.

Here is what employers need to know about the effects of this law and what it might mean for their workplaces.

Law Prohibiting Employment Discrimination Based on Cannabis Use

Beginning on Jan. 1, 2024, this law will bar discrimination against applicants and employees based on their out-of-work cannabis use or the results of employment drug tests that only show non-psychoactive marijuana metabolites in the individual’s system.

The law targets employment discrimination based on an applicant’s or employee’s use of marijuana outside of the workplace during their non-working hours and does not restrict employers from maintaining drug-free workplace policies or testing for marijuana.

Applicants and employees who use cannabis while they are not working will be legally protected from employment discrimination based on their use.

In addition, employers can’t refuse to hire applicants who test positive for non-psychoactive metabolites of marijuana. These are substances left behind in the body once it metabolizes tetrahydrocannabinol (THC).

Marijuana metabolites can remain in the body for several weeks and be detectable on employment drug tests.

However, the presence of metabolites in the body also does not indicate that an individual is currently impaired by marijuana.

Marijuana metabolites are simply byproducts of the natural metabolic process involved in breaking THC down.

Employers typically administer employment drug tests to employees to identify those who might be impaired. According to the California Legislature, the presence of metabolites in an employee’s system is not correlated to being impaired at work.

The Legislature indicated that employers will need to use different types of tests that don’t provide positive results solely based on non-psychoactive THC metabolites.

AB-2188 was added as an amendment to the Fair Employment and Housing Act (FEHA). As a result, applicants and employees who use marijuana outside of work while they are off-duty will be protected against workplace discrimination in the same way as other protected characteristics, including religion, disability, race, gender, gender identity, sexual orientation, color, national origin, and others.

Once this law becomes effective, an applicant or employee will be allowed to file a discrimination charge with the California Civil Rights Department (CRD) if an employer violates the law.

The applicant or employee might also ask for a right-to-sue letter following the CRD’s investigation and pursue damages against an employer through a lawsuit.

Exceptions to AB-2188

AB-2188 amends Cal. Gov. Code § 12954.

While this law promises to change how employers approach marijuana use by applicants and employees, it’s important to note the following exceptions.

1. Employment Drug Testing

Employers will not be prohibited from conducting employment drug tests for marijuana and other substances based on this law.

Instead, under § 12954(a)(1) of the new law, employers are explicitly allowed to screen for the presence of the psychoactive ingredient of THC called delta-9-tetrahydrocannabinol.

The law also allows employers to use other types of impairment tests and act on positive results showing the psychoactive component of cannabis in an applicant’s or employee’s system or other indicators of current impairment.

2. Workplace Possession, Use, or On-the-Job Impairment

AB-2188 will not prohibit employers from enforcing drug-free workplace policies, including for marijuana.

Under § 12954(b), this law will not allow employees to use, possess, or be impaired by THC while they are at work.

Employers retain the right to maintain and enforce drug-free workplace policies when employees use, possess, or are impaired by marijuana on the employer’s premises and during work hours.

3. Employers in the Construction and Building Trades

According to § 12954(c), employers in the construction and building trades are exempted from this new law, which indicates that they could still refuse to hire or terminate employees based on out-of-work marijuana use.

However, the legislature did not include a definition of employers classified as operating within the construction and building trades, so employers should check with their legal counsel for more information.

4. Otherwise Required by Law

This law also won’t apply to employers that are required by federal or state laws to conduct testing for controlled substances, including marijuana, as a condition of employment.

Some examples listed in the law of the types of jobs for which employers will be excepted include the following:

  • Jobs requiring security clearances
  • Positions requiring federal background checks
  • Jobs with employers that are required by state or federal law or regulations to conduct employment drug tests
  • Positions for companies that are required to conduct testing to secure federal contracts

What Employers Should Do

While AB-2188 will not be effective until Jan. 1, 2024, employers should begin reviewing their drug testing policies and procedures now.

They might need to update their policies to include specific information about what is prohibited in the workplace and how HR professionals should handle positive tests for marijuana.

A policy should differentiate between the presence of delta-9-tetrahydrocannabinol in an applicant’s or employee’s system versus non-psychoactive metabolites and explain how a positive result for the psychoactive component will be handled.

The revised policy should expressly state that the employer does not discriminate against applicants or employees solely based on the presence of non-psychoactive THC metabolites to make the information clear to HR professionals.

Get Help From iprospectcheck With Compliant Employment Drug Tests

Many California employers conduct employment drug tests to protect workplace safety.

With the enactment of the new marijuana discrimination law, it’s critical for employers to understand their legal obligations to avoid potential legal liability.

When you with iprospectcheck for your drug screenings, we can help ensure that your tests will fully comply with the law’s requirements.

To receive a free drug screening quote, call us today: (888) 509-1979

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.

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About the Author
Matthew J. Rodgers

Matthew J. Rodgers

Matthew J. Rodgers is a highly accomplished business executive with over 30 years of experience providing strategic vision and leadership to companies ranging from the fortune 500 to iprospectcheck, a company which he co-founded over a decade ago. Matthew is a valued consultant who is dedicated to helping companies create and implement efficient, cost effective and compliant employment screening programs. Matt has been a member of the Professional Background Screeners Association since 2009 . When not focused on iprospectcheck, he can be found spending time with his family, fly fishing, or occasionally running the wild rivers of the American west. A lifetime member of American Whitewater, Matt is passionate about protecting and restoring America’s whitewater rivers.