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California’s AB2188 Now Prohibits Employee Discipline for Off-Duty Marijuana Use

• Oct 13, 2022

A new law in California will significantly change the way employers can address employees’ marijuana use. While prior law made clear that employers could terminate employees for off-duty marijuana use, a new bill prevents employers from taking adverse action against an employee for such use. Instead, the new law only authorizes adverse action against employees who are impaired in the workplace, thus necessitating review of employers’ drug and alcohol policies to ensure compliance with the new law.

Background on Federal and State Marijuana Laws

Under federal law, marijuana use remains illegal. Indeed, marijuana is a Schedule I substance under the Controlled Substances Act, meaning that it has a high potential for abuse, no currently accepted medical use in treatment in the United States and a lack of accepted safety for use under medical supervision. Notwithstanding these laws, according to the Centers for Disease Control, marijuana is the most commonly used federally illegal drug in the United States—48.2 million people, or about 18 of Americans, used it at least once in 2019.

Despite being illegal under federal law, thirty-eight states and the District of Columbia have legalized medical marijuana, and nineteen states and the District of Columbia have legalized recreational marijuana use. But only seven states have laws addressing employers’ obligations concerning their employees’ use of marijuana outside of work: Nevada, New York, New Jersey, Connecticut, Montana, Rhode Island, and now California.

Products containing two primary cannabis derivatives are available to consumers: tetrahydrocannabinol (THC) (a psychoactive derivative that often causes impairment) and cannabidiol (CBD) (a non-psychoactive derivative which typically does not cause impairment). The 2018 federal Farm Bill removed hemp (a cannabis plant containing no more than 0.3 percent of THC) from the federal Controlled Substances Act, effectively legalizing CBD products if they are produced from hemp. However, most CBD products are not regulated by the Food and Drug Administration and cross-contamination during the production process is possible, so consumers may inadvertently ingest higher levels of THC than intended.

In 1996, California became the first state to allow medical marijuana use when voters passed the Compassionate Use Act. Two decades later, California passed the Adult Use of Marijuana Act, legalizing recreational marijuana use. Despite decades of legalization in one form or another, up until now California law has not provided workplace protections for employees who use marijuana outside of work. In fact, in 2008, the California Supreme Court in Ross v. RagingWire Telecommunications ruled that California does not require employers to accommodate the use of medical marijuana. Thus, many California employers have adopted and implemented drug-free workplace policies stating that if an employee tests positive for marijuana, they may be subject to discipline or termination.

Current California law allows workplace drug testing of current employees only when there is evidence of an employee’s impairment. Random drug testing is only permitted in certain safety-sensitive industries. However, new employees are routinely required to submit to drug screens. Most drug tests are only able to determine whether the individual has used cannabis in the previous few weeks (by screening for nonpsychoactive cannabis metabolites), and do not reflect whether an individual is under the influence of marijuana at the time of the test.

The New California Law Will Prohibit Adverse Action for Off-Duty Marijuana Use

On September 19, 2022, Governor Gavin Newsom signed into law Assembly Bill (AB) 2188, which makes it unlawful for California employers to discriminate against employees for their use of marijuana off the job and away from the workplace. However, the new law will still allow employers to test for impairment and maintain a drug-free workplace. The law will go into effect January 1, 2024.

AB 2188 amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from hiring, firing, altering any term or condition of employment, or “otherwise penalizing” a person based on (1) their use of cannabis off the job and away from the workplace; or (2) 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 bill does not apply to employees in the building and construction trades, or applicants or employees hired for positions that require a federal government background investigation or security clearance. Nor does it preempt state or federal laws requiring applicants or employees to be tested for controlled substances. For example, transportation-industry employers are subject to U.S. Department of Transportation (DOT) regulations which prohibit any safety-sensitive employee subject to drug testing under DOT regulations from using marijuana. Federal government contractors and recipients of federal grants are obligated to comply with the federal Drug Free Workplace Act, which requires employers to make “a good faith effort...to maintain a drug-free workplace” and prohibits employees from using controlled substances in the workplace.

Changes to Drug Testing Protocols

The new law’s prohibition against testing for non-psychoactive cannabis metabolites will change the way employers test for possible impairment. The authors of the bill cited to scientific improvements which now provide employers access to drug tests that can test for impairment rather than historic use. Importantly, the new law permits employers to establish policies to maintain a drug and alcohol free workplace, which places the focus on prohibiting impairment or using illicit drugs at work, rather than testing for off-duty use.

Indeed, the primary difficulty with cannabis testing is how to determine if an individual is impaired based on THC levels, as THC can remain in an individual’s body for weeks after using cannabis—and long after the individual would feel the impairing effects. Different testing methods have different sensitivities to THC: 

• Blood tests: up to 12 hours after use
• Saliva tests: up to 24 hours after use
• Urine tests: up to 3-30 days after use
• Hair tests: up to 90 days after use

A report from the University of Sydney published in Neuroscience & Biobehavioral Reviews determined that, depending on how much THC is consumed, how it is taken and the person taking it, cognitive impairment could last between three and 10 hours. Companies are developing new tests similar to breathalyzers that can detect use within two to three hours of use—correlating to the impairment window. But until this technology is widely available, many employers will lack access to effective methods for determining whether an employee is impaired in the workplace—thus increasing the importance of witnesses who can clearly document evidence of impairment (such as slurred speech, lack of attention, changes in motor function and bloodshot eyes).

The procurement and implementation of new tests in compliance with this bill may present a challenge to employers, further complicating employers’ ability to enforce their workplace drug policies. To prepare for the law’s implementation in 2024, California employers will want to review and update their workplace drug policies and their reasonable suspicion drug training and screening protocols. Drug free workplace policies should make clear that off-duty use of marijuana will not be penalized unless the employee is impaired in the workplace. Similarly, reasonable suspicion policies and training should emphasize the importance of identifying, observing and documenting symptoms of impairment (e.g., smelling marijuana on an employee is often insufficient to indicate impairment).