New Protected Class For Cannabis Users

There are new cannabis-use rights for California employees on the horizon. On September 18th, Governor Newsom signed AB 2188, which prohibits employers from discriminating against a person based on their off-duty cannabis use. While California employers have long had the option of how to address cannabis issues, they should prepare for the status quo to change on January 1, 2024, when the law takes effect. That’s right—this new law won’t be effective for another 15 months.

What are the New Cannabis-Use Rights?

Starting in 2024, under the California Fair Employment and Housing Act (FEHA), employers will be prohibited from discriminating in hiring, termination, or any term or condition of employment, or taking adverse action against a person for using cannabis (marijuana) while off the job and away from the workplace. The law thus effectively creates a new protected class under the FEHA.

Note that AB 2188 does not permit an employee to possess or be impaired by cannabis while on the job.  AB 2188 is not intended to interfere with an employer's right to maintain a drug-free and alcohol-free workplace.

Will Employers Be Allowed to Test for Cannabis?

Yes and no. The law prohibits employer drug testing for non-psychoactive cannabis metabolites. Employers are still permitted to test and take adverse action based on THC-positive testing (i.e., psychoactive components) and impairment tests. For example, an employer may conduct THC testing during valid, pre-employment drug screening, post-accident/injury, and when they have a reasonable suspicion the employee is impaired on the job. For current drug testing rules (remember this law doesn’t go into effect until 2024) CEA members may access our Drug and Alcohol Testing Tool Kit in our Employer Tool Kits.

Explain THC Testing vs. Non-Psychoactive Testing

THC stands for “Tetrahydrocannabinol,” which is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. THC testing is based on analyzing bodily fluids, such as saliva and blood. These forms of testing may establish that a person has consumed cannabis in the past several hours.

After THC is metabolized, it is stored in the body as a non-psychoactive cannabis metabolite. These metabolites do not necessarily indicate impairment, but that an individual has consumed cannabis in the last few weeks. Employers may not test for the non-psychoactive cannabis metabolites found in a person’s hair, blood, urine, or other bodily fluids.

Are There Exceptions to this New Law?

Yes. The law will not apply to employees in the building and construction trades, or to positions requiring a federal background investigation or clearance; nor does the law preempt federal contract requirements.