Summary of AB 2188
AB 2188 makes it unlawful for an employer to discriminate against a person upon the person’s use of cannabis while away from the workplace. AB 2188 was signed into law by Governor Gavin Newsom which expands safeguards for employees to include protections for off the job cannabis use. These protections expand to hiring, termination, or any term or condition of employment. Some exceptions to these protections include pre-employment drug screening and employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids, amongst others. AB 2188 goes into effect beginning on January 1, 2024.
Background
The California Fair Employment and Housing Act (FEHA) protects and safeguards the right of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of several protected statuses including race, sex, gender identity, age, religion, national origin, ancestry, disability, marital status, and sexual orientation, and age, amongst others. FEHA prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Protected status can be expanded with amendments to the law.
Changes to California Law
AB 2188 expands the California Fair Employment and Housing Act to include use of cannabis as a protected status. Cannabis use is a protected status, under the law, so long as that cannabis use is away from the workplace. The Legislature declares that the intent of drug tests is to identify employees who may be impaired. Typical drug tests search for tetrahydrocannabinol (THC), the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. Because most drug tests are conducted to find cannabis, the results typically only show the presence of nonpsychoactive cannabis metabolite which has no correlation to impairment.
AB 2188 does not apply to specific employees including:
- Those in the building and construction trades;
- Persons hired for positions that require a federal government background investigation; or
- Applicants that require security clearance in ordnance with regulations issued by the United States Department of Defense pursuant to the Code of Federal Regulations or equivalent regulations applicable to other agencies.
AB 2188 does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including requiring applicants or employees to be tested, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
Additionally, the new law does not permit an employee to possess, be impaired by, or use, cannabis on the job. AB 2188 does not affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.
How do Special Districts Comply?
The California Legislature suggests that due to advancements in science, “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.” Special district employers should review and consider revising their drug and alcohol policies to ensure compliance with the provisions of AB 2188. Employers should also define what “away from the workplace” means due to the rise of remote work. It’s adamant that special districts review their current testing practices to comply with the new law and utilize a drug test that does not screen for nonpsychoactive cannabis metabolites.
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By: Larissa Alvarez, Law Clerk, Liebert Cassidy Whitmore
Republished with permission from California Special Districts Association
