Summary: Starting January 1, 2024, California employees will have new protections against discrimination based on their off-the-clock and off-premises cannabis use. This change comes from an amendment to California’s Fair Employment and Housing Act (AB 2188), signed by Governor Gavin Newsom on September 18, 2022.
AB 2188: California’s New Law Protecting Employees’ Cannabis Use Rights
The amendment to California’s Fair Employment and Housing Act, known as AB 2188, marks a significant shift in workplace policies regarding cannabis use. This law makes it unlawful for employers to discriminate against employees based on their use of cannabis products outside of work hours. This includes not hiring, penalizing, or terminating employees for their off-the-clock cannabis use.
Key aspects of the new law include:
- Pre-employment Drug Testing: AB 2188 prohibits employers from using drug screen results against an applicant if the test reveals evidence of past marijuana use. The focus of employment-related drug testing will shift to testing for impairment on the job, rather than long-term use.
- Termination Based on Marijuana Usage: Prior to AB 2188, employers could discipline employees for using medical or recreational marijuana during their time off. This will no longer be legal under the new law.
- Exceptions to the Protections: The law still allows employers to restrict marijuana use on the job. Employees cannot possess, be impaired by, or use cannabis while working. Additionally, the law does not affect the rights or obligations of employers to maintain a drug-and-alcohol-free workplace. Certain employees, such as those in the building and construction trades and applicants for federal jobs requiring clearance from the U.S. Department of Defense, may still face employment consequences for cannabis usage outside of work.
AB 2188 is the first law in California to specifically provide workplace protections for employees who use cannabis, either medically or recreationally. This law reflects California’s progressive stance on cannabis, being the first state to legalize medical marijuana in 1996 and one of the first to legalize recreational use in 2016.
Source: WRIC
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