AB 2188, which took effect on January 1, 2024, is a significant piece of legislation in California that provides protection for users of recreational marijuana within the employment context. We wrote an article regarding employer rights after the passage of California’s legalization of recreational marijuana use in 2020. The quick answer is, no, your employer rights are still intact, just different. Here’s a summary of the key points and implications of this new law:
Protections for Off-Duty Marijuana Use: Starting in 2024, it will be unlawful for California employers to discriminate against job applicants or employees solely based on their off-duty and away-from-the-workplace use of marijuana. This new law means that using marijuana recreationally outside of work hours and locations cannot be a reason for adverse employment actions such as termination or refusal to hire.- Limitations on Drug Testing: The law restricts the use of traditional drug tests that detect non-psychoactive cannabis metabolites, which can remain in a person’s system for weeks after marijuana use. Employers cannot use these test results for pre-employment drug screening or as a basis for employee discipline or termination.
- Exemptions: This law has some exemptions, including employees in the construction and building industries and those hired for positions that require federal background and clearance checks. However, it’s important to note that employees in other safety-sensitive sectors (e.g., transportation, healthcare, manufacturing, and agriculture) are not exempt from these provisions.
- On-the-Job Prohibitions: The law makes it clear that employees are not permitted to possess, be impaired by, or use marijuana while on the job. Employers still have the right to maintain a drug-free and alcohol-free workplace as allowed under California Health and Safety Code section 11362.45(f).
- Testing for Impairment: The law suggests that a viable method for testing impairment on the job could be through “impairment tests.” While the law doesn’t provide specific details about these tests, they may resemble tests like those conducted for alcohol impairment, such as field sobriety tests.
- THC Tests for Active Psychoactive Components: Employers are encouraged to use alternative drug tests that identify the presence of recently consumed THC, such as saliva tests, upon reasonable suspicion of impairment. The oral fluid test is one such method, but its real-time feasibility and effectiveness may need further examination.
- Revising Drug Policies: Employers that are not exempt from AB 2188 should review and revise their drug screening policies, particularly concerning marijuana. Approaches that rely on traditional tests for non-psychoactive cannabis metabolites should be updated to align with the new law. Employers may consider implementing tests for impairment during interviews or while on duty or tests for psychoactive components of marijuana.
- Consulting Legal Counsel: To ensure compliance with AB 2188, employers are advised to consult their labor and employment counsel. The law represents a significant shift in how marijuana use is handled within the employment context, and employers will need to legally manage the changes it brings.
In conclusion, AB 2188 represents a significant change in how employers in California can address off-duty marijuana use by employees. It emphasizes the importance of testing for impairment or the presence of active psychoactive components of marijuana rather than non-psychoactive metabolites. Employers in California, especially those in non-exempt industries, should be proactive in revising their drug policies and testing methods to ensure compliance with the new law, which went into effect on January 1, 2024.
California has a history of enacting new employment laws that often end up as new laws and regulations across the nation, so, even if you have no employees working in California, this may come to pass in your state soon.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
