September 23, 2022

Gov. Newsom Signs Bill Prohibiting Discrimination for Off-Duty Cannabis Use

AB 2188 – a statute prohibiting discrimination based on off-duty cannabis use – was signed into law on September 19, 2022. As of January 1, 2024 it will be unlawful, with certain exceptions, for an employer to employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person,  based upon the person’s use of cannabis off the job and away from the workplace.

The statute includes exceptions for: 1) preemployment drug screening; or 2) upon 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.

Employees in the building and construction trades; and applicants and employees in positions requiring a federal background investigation or clearance (as specified in the statute) will be exempt from the bill’s provisions.

Nothing in the statute preempts state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Although there is time before the statute becomes effective January 1, 2024, employers should now begin to evaluate current drug testing policies to prepare for the upcoming change.