August 24, 2023
California recently passed Assembly Bill 2188 (AB 2188), which will take effect on January 1, 2024. This bill provides some employment protections for individuals who use recreational marijuana. AB 2188 amends the Fair Employment and Housing Act (FEHA).
This amendment prohibits employers from discriminating against applicants and employees for using marijuana while off duty and away from the work premises. In addition, it prevents discrimination based on the results of a drug screening that detected non-psychoactive cannabis metabolites in the employee’s system. This protection is because individuals can test positive for these metabolites weeks after using marijuana.
These tests do not indicate current or recent influence of cannabis. The legislature stressed increased interest in banning these drug tests because they do not prove current impairment. As such, employers must use other testing methods to reveal cannabis influence.
However, AB 2188 does not prohibit employers from “discriminating in hiring, or any term or condition of employment, or otherwise penalizing a person based on scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” The law also allows employers to maintain a drug-free and alcohol-free workplace. Nothing in AB 2188 permits an employee to possess, be impaired by, or use cannabis on the job.
AB 2188 provides exceptions for employees working in the building and construction trades. It also does not apply to jobs requiring “a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.” Furthermore, it does not preempt state or federal laws that require applicants or employees to undergo drug testing.
According to the California legislature, science has improved, inventing drug tests that can test for recently consumed THC. These new tests allow employers with reasonable suspicion to test employees suspected of working while impaired. These tests should screen for psychoactive components of marijuana rather than the non-psychoactive components.
The legislation mentioned an oral fluid test as an example of alternative testing methods. However, it remains uncertain how practical such screening is in real time. Drug testing companies may likely develop a technique that would prove more applicable under this law. Employers and drug testing companies have until 2024 to prepare for AB 2188.
Employers should review their employment policies ahead of the law’s effective date. This proactive step would provide more time to make necessary changes to drug testing forms and employee handbooks. Affected businesses should work with an experienced background check company. The right partner will ensure the company’s screening policies comply with current and new employment laws.