Cannabis and the Workplace in California: AB 2188

As many states have legalized medical and recreational cannabis use, state employment laws relating to marijuana use have also evolved. California now joins a growing list of states and cities that protect employees and applicants who use marijuana outside of work. On September 18, 2022, Governor Newsom signed into law AB 2188, a workplace antidiscrimination statute that amends the Fair Employment and Housing Act (“FEHA”) to protect a person’s off-duty, off-site cannabis use. It takes effect January 1, 2024, giving employers one year to update their policies, practices, and procedures and to train personnel for the changes.

Where are we, and how did we get here?

California has long been a leader in decriminalizing cannabis use. In 1996 California was the first state to legalize medical marijuana through Proposition 215 (the “Compassionate Use Act”), which amended the Health and Safety Code. Twenty years later in 2016, voters legalized recreational marijuana use through Proposition 64 (the “Control, Regulate and Adult Use of Marijuana Act”). These laws, however, did not address employment protections for those who use medical or recreational marijuana, and employers retained significant discretion in their employment policies respecting cannabis use. Indeed, in 2008 the California Supreme Court in Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008) held that employers could require preemployment drug tests and consider illegal drug use in making employment decisions.^[1] Specifically, the court ruled that an employer need not accommodate an employee’s medical marijuana use for a disability that caused backpain.^[2]

How will AB 2188 change current California law on cannabis and the workplace?

AB 2188 amends the FEHA by adding a provision explicitly protecting a person’s off-site, off-duty marijuana use. Under Section 1 of the Bill, using drug tests that detect only whether an individual has consumed cannabis in recent weeks is considered ineffective to determine impairment at work.

Section 2 of the Bill adds Section 12954 to the California Government Code, amending the FEHA by prohibiting employers from discriminating against applicants or employees because they have done either of the following:

1. Used cannabis off the job and away from the workplace; or
2. Were found to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids by a drug screening test.

The Bill, however, does not cover all workers. It does not apply to employees in the building and construction trades or to applicants or employees hired for positions that require certain federal background checks and clearance. The Bill also does not prohibit employers from complying with state or federal laws that require testing applicants or employees for controlled substances.

Covered individuals will be able to file complaints with the California Civil Rights Division (“CRD,” formerly the Department of Fair Employment and Housing or “DFEH”) and bring actions in court against employers whom they claim violate its provisions. The available relief includes back pay, reinstatement or front pay, compensatory and punitive damages, interest, fees and costs, and declaratory or injunctive relief. Employers that fail to adopt compliant policies may be especially vulnerable to class actions that can result in substantial damages for relief.

Must employers stop drug testing?

No. Under the new law, employers may not discriminate against individuals for use of cannabis off the job and away from the workplace. They may, however, use scientifically valid drug tests conducted through methods that screen for current impairment rather than for non-psychoactive cannabis metabolites since those metabolites are stored in the body and do not indicate current impairment.

Further, AB 2188 does not permit employees to possess, be impaired by, or use cannabis on the job, even for medicinal purposes.^[3] It also does not eliminate an employer’s right to maintain a drug- and alcohol-free workplace under current health and safety laws.^[4]

What should employers do next?

Prior to the law’s implementation in 2024, California employers should revisit their policies, practices, and procedures regarding cannabis and the workplace, including revising their drug testing and screening protocols.

• Revise employee handbooks, especially focusing on sections related to Drug & Alcohol Use, Drug Testing, Antidiscrimination, Harassment, Reasonable Accommodations, and Terms and Conditions of Employment (including Hiring, Discipline, and Termination).
• Revise practices and procedures related to drug testing and discipline for cannabis use to ensure they target only on-duty or on-premises cannabis use and possession. Cease use of drug-testing procedures that do not distinguish use outside of work.
  
  
  
  • Decide how to objectively detect violations of drug and alcohol policies for on-duty/on-premises impairment or possession.
  • Confirm that the application processes conform to the new law, including employment questionnaires and background checks.
  • Ask whether policies and practices might result in liability for creating a disparate impact on workers who fall into a protected class.
• Update and implement new training, especially for recruiters and interviewers.
• Ensure that third-party recruiters are aware of the new requirements and that any communications (whether written or oral) relay only legally compliant messaging related to drug-testing.
• Protect confidentiality. Ensure that investigations of suspected drug use and recordkeeping practices comply with privacy laws.
• Multistate employers should determine whether to take a unified or a state-specific approach. Several places like Connecticut, New York, and Washington, D.C. now require that for an employer to take an adverse action against an employee for suspected cannabis use at work, the employee must manifest articulable symptoms of impairment that substantially decrease or lessen the performance of their job.
• Monitor developments across the country, including at the federal level.
• Keep abreast of guidance from the CRD.
• Keep abreast of technology that assists in identifying impairment at work, such as drug tests that detect psychoactive, rather than just non-psychoactive, cannabinoids.

^[1] Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008).

^[2] Id. at 926.

^[3] See Cal. Health & Safety Code § 11362.785(a).

^[4] See Cal. Health & Safety Code § 11362.45.