On September 18, 2022, Governor Newsom signed and approved Assembly Bill 2188 (“AB 2188”), which amends the California Fair Employment and Housing Act (“FEHA”) to generally prohibit an employer from discriminating against an employee or employment applicant for cannabis use off the job and away from work, which is a significant change to the FEHA.
Since AB 2188, does not become operative until January 1, 2024, California employers have some time to fully understand and prepare for the impact of AB 2188 on the workplace. As we wait for AB 2188 to become operative, it’s also possible that the California Civil Rights Department, the state agency charged with enforcing the FEHA and California’s other civil rights laws, will issue guidance for employers, employees, and applicants about this change in law. In the meantime, here’s what we know now:
Which Employers Are Covered Under AB 2188?
The FEHA sets forth a general definition of employer that applies unless a particular section of the FEHA sets forth a different definition. Since AB 2188 does not set forth its own definition of employer, the general definition of employer applies.
Accordingly, for purposes of AB 2188, an employer is a person or entity regularly employing five or more persons, the state, any political or civil subdivision of the state, and cities. Nonprofit religious associations and nonprofit religious corporations are expressly excluded from the definition of employer under the FEHA, and so AB 2188 does not apply to them.
Which Employees and Applicants Are Covered Under AB 2188?
AB 2188 applies to all employees and applicants of a covered employer, except the following:
- Employees in the building and construction trades; and
- Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with United States Department of Defense regulations (National Industrial Security Program Operating Manual (NISPOM), 32 CFR Part 117), or equivalent regulations applicable to other agencies.
What Exactly Is Prohibited?
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 that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
What About On-The-Job Cannabis Use?
AB 2188 does not permit an employee to possess, to be impaired by, or to use cannabis on the job. As such, at this time 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.
What About Drug-Testing?
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”).
When Must Employers Start Complying with AB 2188?
AB 2188 adds Section 12954 to the Government Code, which becomes operative on January 1, 2024.
What’s the Intent Behind AB 2188?
The Legislative intent behind AB 2188 is to prevent adverse employment actions against applicants and employees because of off-duty cannabis use that does not cause impairment while working. The Legislature noted that after an individual smokes or consumes cannabis, THC is metabolized and stored in the body for several weeks as a non-psychoactive cannabis metabolite. As such, the presence of non-psychoactive cannabis metabolites in the body does not indicate that an individual is impaired, only that they smoked or consumed cannabis in the last few weeks.
However, many drug tests used by employers to test for cannabis use only show the presence of non-psychoactive cannabis metabolites in the body, and do not test for actual impairment. As a result, employers have taken adverse employment actions against applicants and employees based on drug test results that revealed past cannabis use, but not active, current impairment.
In passing AB 2188, the Legislature wanted to end this from occurring, while still allowing employers to use drug tests that measure active, current impairment, including those that identify the presence of THC in an individual’s bodily fluids, and to take appropriate employment actions based on those results.
Recommendations to Prepare for AB 2188 to Take Effect
As employers prepare for AB 2188 to take effect, we recommend the following in consultation with legal counsel:
- Assess which categories of employees, if any, may be exempt from AB 2188;
- Review drug and alcohol free workplace policies for any necessary changes to comply with AB 2188, and make those revisions in time to be adopted effective January 1, 2024; and
- Review and update any drug testing policies and practices for employees covered by AB 2188 to eliminate testing that screens for non-psychoactive cannabis metabolites, and instead use testing that only indicates impairment on the job, such as the presence of THC. Make those revisions in time to be adopted effective January 1, 2024.
Trusted legal counsel are available to consult on the impact of AB 2188 to individual employers, and also to assist taking the necessary steps to prepare for this new legislation to take effect.
