September 30, 2022 -- On September 18, 2022, the Governor signed into law Assembly Bill (A.B.) 2188 to protect employees’ rights against discrimination under the California Fair Employment and Housing Act for off-duty cannabis use.
A.B. 2188 prohibits certain employers from discriminating against a person in hiring, termination, or any term or condition of employment because of a person's off-duty cannabis use. Yet, the law's language intends to leave the employer's rights and duties to maintain a safe and drug-free workplace untouched. Most importantly, the law does not permit an employee to possess, use, or be impaired by marijuana on duty. Instead, with certain exceptions, the law focuses on protecting persons from employment discrimination under two (2) specific circumstances:
First, an employer cannot discriminate against a person who uses cannabis off-duty and away from the workplace. Second, the employer cannot discriminate in instances when an employer uses a metabolite drug test to screen for the presence of non-psychoactive cannabis metabolites. Non-psychoactive cannabis metabolites found in a person's urine, hair, blood, or other bodily fluids indicate a person's previous use of marijuana. Generally, a metabolite drug test does not necessarily indicate impairment, but only that a person has consumed cannabis in the recent past without temporal accuracy.
However, the new law does not entirely strip employers’ rights to use drug tests in appropriate circumstances. Other scientifically valid employment drug tests and screenings are allowed in appropriate circumstances so long as the tests do not screen for non-psychoactive cannabis metabolites.
While A.B. 2188 will apply generally, the law includes exceptions for certain private sector and government employees. For example, employees in the building and construction industry are an exception to the rule. Further, applicants and employees for government positions that require a federal government background investigation or security clearance under Department of Defense regulations are outside the scope of the law. Additionally, government and non-government contractors trusted with safeguarding classified information are exempt from protection. (See 32 C.F.R. § 117.2 [concerning classified information].)
The law does not preempt state or federal laws or regulations that subject certain applicants or employees to testing for controlled substances, including laws allowing testing of certain applicants holding a conditional job offer, as a condition of receiving federal funding or federal licensing-related benefits, or as a condition of entering into a federal contract. Similarly, the law does not impact U.S. Department of Transportation regulations related to drug testing.
Note, the law does not become effective until January 1, 2024, allowing local government and employers time to review and update future employment practices and procedures if necessary. Drug testing is a highly regulated area of the law, and you should contact an attorney before drug testing employees.
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