California’s relationship with cannabis takes on a new form in 2024. Legalized for medicinal purposes since 1996, cannabis was approved for recreational use by state voters in 2016, but that didn’t mean the drug no longer posed a risk for working Americans. California’s new legislation, Assembly Bill 2188 and Senate Bill 700, changes the game for state residents’ recreational cannabis use.
Taking effect on January 1, California’s Fair Employment and Housing Act (FEHA) now protects cannabis users, creating a new class in the state for individuals who participate in offsite, off-duty medical marijuana use. AB 2188 was signed by Governor Gavin Newsom in 2022, which prohibits state employers from discriminating against workers who test positive for cannabis in certain types of drug tests, as well as using positive test results to make decisions regarding hiring, firing, and penalizing individuals.
AB 2188 specifically prohibits employers from using positive test results on hair or urine drug screenings to help make decisions concerning employment because of the duration in which cannabis can stay as stored metabolites in an individual’s system. Cannabis can be detected on hair and urine screenings for as long as 90 days after use, which means that positive tests yield results of consumed cannabis—not active impairment in the workplace. Under the new legislation, employers must now adopt testing procedures that can screen for current impairment/THC, discontinuing the use of tests for non-psychoactive cannabis metabolites that do not indicate an employee is impaired while on the job.
While AB 2188 now protects workers who choose to use cannabis recreationally on their off-hours from workplace discrimination and harassment, this law does not apply employment protections for the building and construction industry, nor for job applicants and employees in positions where federal background investigations or clearances are required.
SB 700 further clarifies AB 2188, amending FEHA to bar employers from asking job applications about previous cannabis use. Though some employers are still allowed to ask about an applicant’s past conviction history, California’s new cannabis legislation prohibits employers from discriminating against a job applicant should they learn about past cannabis usage that is related to an applicant’s criminal history, unless otherwise permitted by law.
Despite the additional protection employees receive against workplace discrimination, employers still have the right to maintain a drug-free work environment. The state’s new legislation may cause compliance headaches for its businesses, as employers must be able to keep the workplace safe. Thus, AB 2188 does not prevent employers from using other tests to detect current impairment while on the job, such as blood tests. Job applicants and employees who are actively impaired or bring marijuana into the work setting still take the risk of being denied employment opportunities, disciplined, or terminated.
Now that this legislation is in effect, California employers should review their current policies and procedures regarding drug and alcohol use to ensure their compliance with AB 2188, as anti-discrimination and drug use policies will need to reflect the new protections given to cannabis users. It will be important for employers to distinguish between cannabis use outside of the workplace versus active impairment in the workplace, specifying what screening procedures will be used to test applicants and employees in compliance with the new law.
