Assembly Bill 2188 (AB 2188) amends the California Fair Employment and Housing Act (FEHA) to generally prohibit an employer from discriminating against an employee or applicant because of the employee’s or applicant’s cannabis use off the job and away from work. The change to the law h is significant. AB 2188 applies to an employer with five (5) or more persons but does not apply to nonprofit religious associations and nonprofit religious corporations. AB 2188 becomes operative on January 1, 2024.
AB 2188 makes it unlawful for a covered employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
- The person’s use of cannabis off the job and away from the workplace; or
- An employer-required drug-screening test has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
AB 2188 does not permit an employee to possess, be impaired by, or use cannabis on the job. As such, it appears covered employers may continue to enforce any policies they may have prohibiting employees from possessing, being impaired by, or using cannabis while working. Presumably, if an employee smokes or consumes cannabis out of work, and arrives to work impaired, that conduct would not be protected by AB 2188.
AB 2188 also does not affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace under California Health and Safety Code Section 11362.45, or by federal law or regulation.
AB 2188 does not preempt state or federal laws and regulations requiring applicants or employees to be tested for controlled substances as a condition of employment, for the employer to receive federal funding or federal licensing-related benefits, or to be able to enter into a federal contract.
AB 2188 also expressly allows employers to make employment-related decisions based on tests that apply to current impairment, in particular scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as those that test for tetrahydrocannabinol (THC).
(Adds Section 12954 to the Government Code.)
