Governor Newsom signed AB 2188 which expands employees’ rights to fight discrimination for off duty cannabis use. This new law does not go into effect until January 1, 2024. However, sweeping changes will be needed so employers should start to prepare this year.
AB 2188 prohibits employers from discriminating while hiring, terminating, or any term or condition of employment, or otherwise penalize a person if it is based on a persons off duty cannabis use. This also applies to an employer-required drug test of an employee. Meaning, employers will no longer be able to rescind an offer or terminate a current employee if their drug test results show cannabis metabolites. Cannabis metabolites do not prove current impairment, rather it shows previous use of cannabis that has since been metabolized.
Important information for California employers: this does not change your right to have and maintain a drug-free workplace. Employees are not able to show up to work impaired or under the influence of cannabis or bring cannabis into the workplace.
There are also exceptions to AB 2188. Employees applying for or currently holding a position in construction trades, or positions that require a federal background check may not be protected by this new bill.
Current availability of drug tests that detect current THC levels as opposed to the presence of cannabis metabolites (tests that show if someone is currently impaired versus recent use) are not readily available and very expensive. The one-year delay in this bill is meant to increase production and make those tests more accessible.
What is THC and why is it important? THC stands for tetrahydrocannabionol and is the component in marijuana that impairs you.
Now is the time to review your drug and alcohol policies and start making necessary updates to comply with AB 2188 by the start of 2024.