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Governor Newsom recently signed Assembly Bill 2188, which amends the Fair Employment and Housing Act (FEHA) to prohibit discrimination against employees and applicants for employment for off-duty use of cannabis. Effective January 1, 2024, the bill makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.”

California law permits pre-employment, post-offer drug screening and drug testing based on reasonable suspicion. However, most drug tests do not identify impairment from tetrahydrocannabinol (THC). Instead, they show the presence of non-psychoactive cannabis metabolites, which are stored in the body for weeks after the THC is metabolized. The new law prohibits discrimination against employees who are found to have non-psychoactive cannabis metabolites in their system after using cannabis off the job and away from the workplace.

Employers do still have some recourse regarding employee cannabis use. AB 2188 does not permit employees to possess or use cannabis on the job, and it does not affect the rights of employers to maintain a drug and alcohol-free workplace. This means employers can still discipline employees under their drug policy for possession or use of cannabis while they are working. Moreover, these protections would not apply to employees or applicants for positions in the building or construction industry or “positions that require a federal government background investigation or security clearance.” The bill specifically notes that it does not preempt federal laws regulating testing for federal contractors or other employers receiving federal funding or licensing.

Since the requirements do not take effect until January 1, 2024, employers have time to gain access to drug tests that do not rely on the presence of non-psychoactive cannabis metabolites and to update their drug testing policies. Members may contact the California Legal Services Team at CAInfo@employerscouncil.org with any questions.