2024 is just around the corner. Now is the perfect time for employers to revisit employee handbooks and policies to prepare for an upcoming change in the law pertaining to cannabis at work. Commencing January 1, 2024, the rights of employees using cannabis will expand.
In 2022, Governor Gavin Newsom signed AB 2188 which goes into effect on January 1, 2024. AB 2188 provides that employers shall be prohibited from discriminating against a person in hiring, termination or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.
We have prepared some of the most common questions and answers with employers to help clients navigate this new change in the law:
“May I still drug test my employees?”
Yes. California law allows workplace drug testing of current employees only when there is evidence of an employee’s impairment, including glossy/ red eyes, slow thought-processing, cognitive dysfunction, or deficiency, heightened sensory perception, excessive laughter, and increased appetite. Employers must use scientifically valid drug screening methods that do not screen for nonpsychoactive cannabis metabolites (i.e., traces of cannabis stored in the body that have no effect on mental processing).
“May I still conduct preemployment drug screenings?”
Yes. The law does not prohibit an employer from basing hiring decisions on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
“What if my employee smokes cannabis before work, may I fire him/her?” Maybe. Employers must approach a medical marijuana accommodation issue on a case-by-case basis. In one landmark case that has not been overturned, Ross v. Ragingwire Telecommunications, Inc., 42 Cal.4th 920 (2008), the California Supreme Court held that employers are not required to permit or accommodate marijuana use as a reasonable accommodation under California’s Fair Employment and Housing Act. Moreover, the passage of Proposition 64 did not affect the Ross decision. What this means for employers is that their right for a drugfree workplace may still be strong despite the passage of SB 2188. It is highly advised that you consult an attorney if your employee has a medical marijuana accommodation request to avoid the unnecessary risk of a lawsuit.
“How does this law interact with state or federal law requiring applicants or employees to be tested for controlled substances?”
Under federal law, cannabis remains illegal. This law does not change that. Thus, this law does not interfere with state or federal laws requiring applicants or employees to be tested for controlled substances, as a condition of employment.
“Are there any specific trades that are exempt from AB 2188?”
Yes. This law does not apply to employees in the building and construction trades. Also, the law does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
The link to the full text of SB 2188 can be located here:
California Legislative Information Assembly Bill No. 2188
Please contact our firm for further information, questions, or assistance.
