As of January 1, 2024, Assembly Bill 2188 (AB 2188) has significantly impacted drug testing policies and employment decisions relating to cannabis use among California employers.

This bill amends the Fair Employment and Housing Act (FEHA), making it unlawful for employers to discriminate based on an individual’s off-job and away-from-workplace cannabis use. This change means that employers cannot use the presence of nonpsychoactive cannabis metabolites as a basis for hiring, firing, or other employment decisions. These nonpsychoactive cannabis metabolites don’t indicate impairment but can attach themselves to fat cells and be detected in the body for weeks. An example of a nonpsychoactive cannabinoid is CBD which in many states can be purchased over the counter at most grocery and convenience stores. The alleged benefits of CBD and other nonpsychoactive cannabinoids include treating anxiety, pain, and inflammation without the psychoactive effects “high” of tetrahydrocannabinol (THC).

The law doesn’t give employees carte blanche to use cannabis at work.

Employers still have the right to maintain a drug-free workplace, which includes prohibiting employees from being impaired by or using cannabis on the job. Impairment testin

Marijuana leaf split in half representing the psychoactive and nonpsychoactive properties.

Split Personality

g, akin to alcohol testing used in traffic stops, may be used to assess if an employee is impaired while on duty. Also, employers can use tests that detect recently consumed THC rather than tests for non-psychoactive metabolites. This means that an oral swab (saliva) test for the psychoactive component of marijuana (THC) along with other drugs; typically cocaine, amphetamines/methamphetamines, opioids, and PCP can still be utilized as part of a pre-employment drug testing program in California.

There are also specific exemptions within AB 2188.

For instance, it does not apply to employees in the construction and building trades or to positions requiring federal background checks and security clearances. This exclusion aligns with federal regulations and the Drug-Free Workplace Act, which mandates a drug-free environment in certain sectors like transportation.

In Summary

  • California employers can no longer utilize the standard marijuana drug test panel currently integrated into most Non-DOT urine and hair tests. Employers can utilize an oral fluid drug test which limits the marijuana panel to only detect the psychoactive components of marijuana. Other common types of drug tests such as urine drug testing and hair drug testing do not yet have this capability.
  • Employers in California are encouraged to revisit and update their drug screening policies, especially regarding pre-employment testing and handling marijuana use in hiring, discipline, and termination processes. These policies must reflect the new legal landscape, balancing employee safety, workforce diversity, and legal compliance.
  • AB 2188’s implementation aligns with shifts in other states like New York and New Jersey, which have also instituted protections for off-duty cannabis use. The nuances of AB 2188, including its stance on different THC variations and the shift towards impairment-focused testing, underscore a broader change in how cannabis use is perceived and managed in the employment context.
  • Given these significant changes, employers should consult with legal professionals to ensure their policies and practices comply with AB 2188 and related legislation like Senate Bill 700, which further restricts inquiries into an applicant’s past cannabis use.
  • AB 2188 represents a significant shift in employment law in California, prioritizing the distinction between off-duty cannabis use and workplace impairment, and necessitates a thorough review and update of employer drug testing and employment policies.

Have questions? We’re here to help! Contact Brad Jones at 888-578-8600 x113 with questions on this topic or background screening services for your business. Please note: This post is for educational purposes only. Brad Jones and the team at SafeScreener are not lawyers and do not provide legal advice. Always seek guidance from a legal professional when creating or updating your hiring or applicant screening policies.