New Law Bars ‘Discrimination’ Against Cannabis-Using Employees

California Governor Gavin Newsom has signed into law legislation that would bar employers from discriminating against employees and job applicants who use cannabis on their time off.

The law amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination against an individual based on “an employer-required drug screening test” that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The new law does not bar employers from drug-testing, but it does impose restrictions on what they can do in response to a positive test.

The legislation, AB 2188, amends the state’s FEHA to prohibit employers from discriminating against employees and job prospects, or otherwise penalize them for either:

• Their use of cannabis off the job and away from the workplace, or
• An employer-required drug test that detects cannabis in their system (from either a hair, blood, urine or bodily fluid sample).

Employer rights

The law, it should be noted, is not a green light for workers to use or possess cannabis on the job. Also, it won’t impinge on an employer’s rights to maintain a drug-free workplace.

An employer would still be within their rights to take disciplinary action against someone who is impaired from cannabis use while on the job.

They also have some leeway in trying to judge someone’s impairment, but it comes down to the type of test they use.

Acceptable tests

There are two types of tests:

• Ones that detect the presence of tetrahydrocannabinol (THC), the chemical compound in cannabis that causes impairment and psychoactive effects.
• Ones that detect the presence of nonpsychoactive cannabis metabolites, which is what is left after the body metabolizes THC. These metabolites do not indicate that an individual is impaired, but only reveal whether an individual has consumed cannabis recently (up to a month in the case of a urine test).

Under the new law, employers would be authorized to take disciplinary action if a THC test is positive, meaning the employee is likely impaired at work.

Conversely, they cannot take adverse employment actions in response to a test that detects nonpsychoactive cannabis metabolites in the worker’s system.

Exemptions

There are some exemptions in AB 2188, in particular:

• It does not apply to workers in the building and construction trades. Employers would still be allowed to make employment decisions for workers and applicants who use cannabis in their off hours and test positive for nonpsychoactive cannabis metabolites.
• The law does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or other federal agencies.
• The law 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, or entering into a federal contract.

The takeaway

Employers have time to change any policies they have in place concerning drug-testing and cannabis use. The law takes effect Jan. 1, 2024.

Remember, you can still take action against someone who is impaired at work.