On September 18, 2022, Governor Gavin Newsom signed AB 2188 into law which prohibits discrimination against an employee based on their use of cannabis outside of work. More specifically, the law prohibits discrimination in hiring, termination, and other employment decisions based on the consumption of cannabis while off the job. While the law does not come into effect until January 1, 2024, California employers should begin preparing now to ensure compliance.
Cannabis Use Protection
Currently, the California Fair Employment and Housing Act (“FEHA”) protects the rights of individuals to seek and hold employment without discrimination or harassment on account of specified classifications (including, but not limited to, race, religious creed, sex, and disability). FEHA also prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. However, FEHA currently does not protect the recreational use of cannabis outside the workplace.
With the signing of AB 2188 into law, it will become unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, if the discrimination is based upon the individual’s use of cannabis off the job and away from the workplace.
How does AB 2188 Change Employer’s Rights?
The new law does not take away an employer’s right to maintain a drug-free workplace. It will continue to allow pre-employment drug screening, or upon an employer-required drug test that has found the person to have “nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids”.
Furthermore, the law will not apply to employees in building or construction trades and will not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment.
Employers have 15 months to prepare for AB 2188 by reviewing current processes for drug testing and considering the implementation of alternative testing methods.
For more information about AB 2188, how to best prepare for AB 2188, and ensure compliance, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
