As widely expected, Governor Newsom signed AB 2188 into law extending FEHA protection to employees who use cannabis while off duty and off-premise. This higher protection for employees who use cannabis will be effective on January 1, 2024. Employers have ample time to roll out compliant policies and testing procedures prior to the effective date.
Using Pot While Off-Duty and Outside of Work Will be Protected Under the FEHA
Under existing law, the California Fair Employment and Housing Act (“FEHA”), safeguards the right and opportunity for all persons to pursue, obtain and hold employment without discrimination or harassment on account of several protected categories. Currently, the FEHA protects prospective and existing employees from discrimination and harassment on the basis of race, religion, national origin, physical and mental disability, sex, gender and age, among other protected categories. Sometimes Cannabis use is related to disability, but the lines of whether and when that needs to be accommodated have been blurry.
The California legislature notes that the tetrahydrocannabinol (THC) “is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.” After THC is metabolized, it is stored in the body as nonpsychoactive metabolites, which can remain detectable in the body for several weeks. The presence of the nonpsychoactive metabolites does not indicate that a person is impaired. The legislature further noted that the “intent of drug tests is to identify employees who may be impaired” and that advanced science has created alternative tests only for the presence of THC.
With that background in mind, AB 2188 prohibits employers from discriminating against applicants or employees on the basis of drug tests showing the presence of the nonpsychoactive cannabis metabolites or the person’s use of cannabis off the job and away from the workplace.
Notably, employers can still maintain a drug and alcohol-free workplace. Under the new law, employees shall not possess cannabis while at the workplace or be impaired by or use cannabis while on the job. Employers may still test for controlled substances as a condition of employment.
AB 2188 does not apply to employees in the building and construction trades and those requiring a federal background investigation or clearance.
Getting into the weed(s) of what employers should do to prepare themselves for the new legislation, employers who use pre-employment drug tests and screening will need to monitor developments and the availability of compliant cannabis tests. Beginning in 2024, any disciplinary actions taken against an employee for the presence of the nonpsychoactive cannabis metabolites can lead to claims or litigation.
To put it bluntly, many industries may opt to forego pre-employment drug tests. In some non-safety sensitive workplaces (perhaps retail, customer service, or many types of remote work), an employee with some leftover nonpsychoactive metabolites in their system might not be a big deal.
Finally, employers should review current drug and alcohol testing and use policies and practices in advance of January 1, 2024 to ensure they are compliant with AB 2188.
Leave it to California to blaze forward with a new law that challenges the status quo for weed at work.