October 18, 2022

New California Legislation Will Not Allow Employers to Prohibit Off-the-Job Marijuana Use for Much Longer

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This blog post is a Q&A on California Assembly Bill-2188 - Discrimination in employment: use of cannabis.

When will AB 2188 go into effect?

AB 2188 was signed by Governor Newsom on Sept. 18, 2022, but will not become operative until Jan. 1, 2024.

Isn't cannabis use already legal in California?

Yes, the use of cannabis - also known as marijuana - for medicinal purposes has been allowed in California since voters passed Proposition 215 in 1996. California went a step further after the 2016 passage of Proposition 64, which legalized recreational marijuana use. Prop. 64, however, did not restrict employers from enacting and enforcing workplace policies pertaining to cannabis.

What will AB 2188 do?

AB 2188 prohibits employers from discriminating against employees based on: (1) the employee's use of cannabis off the job and away from the workplace; and (2) a drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Are there exceptions to AB 2188's new rules?

Yes, AB 2188 does not apply to employees in the "building and construction trades." Nor does it apply to employees in positions requiring federal government background investigations or security clearances through the United States Department of Defense.

Can I discipline an employee who shows up to work high?

Yes, the new law does not permit an employee to be "impaired by" cannabis on the job. The statute does not define impairment, which could lead to future litigation.

Can I still drug test my employees?

Yes, the statute continues to allow employers to use-test their employees so long as the tests are not based on whether the employee has "nonpsychoactive cannabis metabolites" in their body. This could include tests that measure the presence of tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis. Further, AB 2188 does not impact any state or federal laws that require certain employees to be tested for controlled substances.

Can I still prohibit my employees from possessing marijuana in the workplace?

Yes, AB 2188 does not provide employees with the right to possess marijuana on the job.

Do any other states have similar protections?

Yes, Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island have all passed laws protecting employees who recreationally smoke marijuana outside the workplace.

Isn't marijuana use illegal under federal law?

The federal prohibition on marijuana has existed since 1937, and federal law continues to classify cannabis as an illegal substance. Federal authorities are still authorized to prosecute Californians who use cannabis, but it is still unclear if and how that authority will be used. President Biden recently issued a presidential proclamation that pardons federal convictions for simple marijuana possession offenses. Also, the Office of Personnel Management previously issued a memorandum prohibiting federal agencies from automatically finding individuals unsuitable for federal employment based on prior marijuana use. This may indicate that federal prosecution is not likely for marijuana users who act in compliance with state and local marijuana laws and consistent with federal concerns such as preventing minors from using marijuana.

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