On September 18, 2022, Governor Gavin Newsom signed AB 2188 into law, which prohibits employers from taking any adverse employment action against an employee because of their off-duty marijuana use. In enacting AB 2188, California becomes the latest state to provide workplace protections for off-duty use of the substance, which has been legal in the state for all adults 21 and over since 2016.
California Legislature Passes AB 2188
The new law, which does not take effect until January 1, 2024, amends the California Fair Employment and Housing Act (“FEHA”) making it unlawful to discriminate against any person in hiring, termination, or any term or condition of employment, or “otherwise penalize a person,” based on (i) the “person’s use of cannabis off the job and away from the workplace,” or (ii) an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
The reason for the second provision is that most drug tests currently utilized by employers only detect the presence of nonpsychoactive cannabis metabolites. A positive urine or hair test, which only detects nonpsychoactive metabolites, does not indicate impairment. It only shows whether an individual has used cannabis in the last few weeks, according to the Legislature. Employers will be prohibited from relying on these tests in making employment decisions (with limited exceptions) starting in 2024.
On the other hand, the law does not prohibit employers from using “scientifically valid” screening methods that “do not screen for nonpsychoactive cannabis metabolites.” Saliva and blood tests show promise in being able to measure THC molecules active in an individual’s system for a short time after ingestion, but the tests must be administered promptly after the employee consumes marijuana. The law also suggests that employers may use “impairment tests” that measure an employee against their baseline performance, but currently, such tests are not widely available or used in the employment context.
The law contains several notable exclusions. First, it exempts from its protections “an employee in the building and construction trades.” However, it is unclear whether the law will apply to all employees working for employers in these fields or whether the specific employee must be “in the building and construction trades” to be exempt. This means that off-duty marijuana use by administrative employees and other support staff working for construction-industry employers may still be protected by AB 2188 since they do not directly perform work in the building and construction trades.
In addition, AB 2188 does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance. It also exempts applicants and employees required to be tested for controlled substances under applicable law (such as Department of Transportation agency testing regulations) or as a condition of receiving federal funding, federal licensing-related benefits, or entering into a federal contract.
Employers have approximately 15 months before AB 2188 takes effect. During that time, employers should review their drug testing policies to ensure compliance with the new law and communicate with the companies that handle their drug testing to ensure that marijuana screenings performed after January 1, 2024 do not test for nonpsychoactive cannabis metabolites.
President Biden to Pardon Marijuana Offenders and Begin Process to Federally Reschedule Marijuana
On a related note, President Bident announced on October 6, 2022 that he would pardon all prior federal offenses for simple possession of marijuana. Employers should keep this in mind when performing background checks on potential candidates. Under the Fair Chance Act, it is illegal for an employer to consider when making employment decisions convictions for which employees or applicants have received a pardon.
President Biden also announced that he would ask the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review how marijuana is scheduled under federal law. If the federal government were to reschedule marijuana under the Controlled Substances Act, where it is currently classified as a Schedule I substance, it may affect whether employers are required to screen for marijuana when the employee requires a security clearance or as a condition of receiving federal funding or other federal benefits. Employees required to be screened for marijuana use for these reasons are currently excluded from protections under AB 2188, but this would likely change if marijuana was rescheduled under the Controlled Substances Act.