On September 18, 2022, California’s Governor Gavin Newsom signed Assembly Bill 2188 into law.i  Beginning January 1, 2024, the California Fair Employment and Housing Act (FEHA) will add employee protections against discrimination based on off-the-job cannabis use.[i]  Assembly Bill 2188 focuses on employee impairment from cannabis use, which is related to the tetrahydrocannabinol (THC), and adds new requirements on employer-required drug screening tests.i

What Does the Bill Intend to Do?

The bill amends FEHA to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s “use of cannabis off the job and away from the workplace.”  Specifically, FEHA will now prohibit discrimination in hiring or any term of employment based upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair or bodily fluids.

Federal Law and Current California State Law

There is some important background information that helps to put into context the transformative effects of Assembly Bill 2188.  This is the first time California’s permissible cannabis-use laws have been incorporated into the employment setting.i

• Since 1971, cannabis has been classified as a Schedule I drug by the federal government under the Controlled Substances Act.i Schedule I drugs are described as having “no currently accepted medical use,” “a high potential for abuse,” and “a lack of accepted safety for use under medical supervision.”[ii]
• Federal law remains unchanged; cannabis is still considered a Schedule I drug. California law has conflicted with federal law since it became the first state to legalize medical marijuana through the Compassionate Use Act of 1996.
• The Compassionate Use Act of 1996 prevented patients and their primary caregivers from criminal prosecution for obtaining and using cannabis for medical purposes with a physician’s recommendation; it did not extend that same protection to the workplace.
• The California Supreme Court upheld the employee’s termination for cannabis use and found: “[n]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees” and “[u]nder California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.”[iii]
• The Health and Safety Code enacted a provision that public and private employers could “maintain a drug and alcohol-free workplace”; they were not required “to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace,” and employers could have “policies prohibiting the use of cannabis by employees and prospective employees.”[iv]

Are There Any Exceptions to Who Assembly Bill 2188 Applies To?

Assembly Bill 2188 would exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance, as specified.[v]  The bill would specify it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, and/or entering into a federal contract.ii

What Changes Does Assembly Bill 2188 Make?

Once in effect, this bill will substantially alter how and when employers can drug test employees for cannabis, and what they can do with those results.  The legislature declares that tetrahydrocannabinol (THC), the psychoactive chemical compound in cannabis, is stored in the body as a non-psychoactive cannabis metabolite after it is metabolized.  These metabolites do not indicate impairment, but only that an individual has consumed cannabis in the last few weeks.

Employment-related drug tests intend to identify employees who may be impaired or under the influence of THC at a worksite.  However, most cannabis drug tests tend to only show the presence of the non-psychoactive cannabis metabolites that have no correlation to present impairment.  Alternative drug tests that better correlate to impairment are more readily available and do not rely upon the presence of non-psychoactive cannabis metabolites to identify the presence of recently consumed THC.

It is important to note that this bill does not permit an employee to possess, be impaired by, or use cannabis on the job, or affect the rights or obligations of an employer to maintain a drug and alcohol-free workplace.  Nor does it invalidate or conflict with Health & Safety Code §11362.45.

Next Steps for California Employers

Assembly Bill 2188 goes into effect January 1, 2024 and makes key changes to the California FEHA.  Employers may want to consider reviewing their current employment hiring, discipline, and termination policies and practices to ensure they are in compliance with the law when it takes effect.  Additionally, employers who use pre-employment drug screenings will need to identify and source complaint testing methods in order to continue pre-employment screening consistent with the new requirements.  It is recommended employers consult their labor and employment counsel to ensure they are prepared to comply with the new law.

Fiona Murphy co-authored and is a law clerk in Tyson & Mendes’ 2022 clerkship program.

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Sources

[i] Tyler Bernstein & Susan Haines, California Expands Employees’ Right to Off-Duty Cannabis Use JD Supra (2022), https://www.jdsupra.com/legalnews/california-expands-employees-right-to-6602041/.

[ii] 21 U.S. C § 812 (b) (1).

[iii] Ross v. Ragingwire Telecommunications, Inc., 42 Cal.4th 920, 923-24 (2008).

[iv] Health & Safety Code § 11362.45(f).

[v]  Discrimination in employment: use of cannabis, Assemb. Bill No. 2188, Cal. § 12954 (2022).