AB 2188 Gives Greater Employee Protections Related to Cannabis Use Outside of Employment

Governor Newsom signed into law on September 19, 2022, Assembly Bill 2188 that provides greater protections to employees against discipline based on the results of drug tests that show cannabis use away from work.  

The new law goes into effect on January 1, 2024 and will prohibit employers from discriminating against employees, or disciplining employees, on the basis of drug tests that detect the presence of non-psychoactive cannabis metabolites, such as urine drug tests, which can pick up cannabis use from days or weeks prior. The non-psychoactive cannabis metabolites have no correlation to impairment on the job. 

As of January 1, it will be illegal for an employer to discriminate against a person in hiring, termination, or any other term or condition of employment, if the employer’s action is based on the person’s use of cannabis off the job and away from the workplace, or if the employer action is based on a drug test that finds non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. 

The law does not permit an employee to possess, be impaired by, or use, cannabis on the job. 

There are some large carveouts to the bill: (1) it doesn’t apply to employees in the building and construction trades; (2) it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances (such as “safety sensitive” employees who are required to be tested pursuant to the Department of Transportation), or where such testing is required for the employer to receive federal funding, federal licensing-benefits, or to enter into a federal contract.  

However, for all other employees in California, employers can only discipline or penalize employees based on drug tests that detect THC, the psychoactive component of cannabis. Many drug and alcohol policies, in collective bargaining agreements and otherwise, will have to be amended as a result of this law.

For more information, please contact your labor law counsel.