October 28, 2022

New Cannabis Protections for Off-Work Conduct

California’s newest cannabis legislation AB 2188 offers protection to workers whose off-work conduct includes the use of cannabis. Set to take effect January 1, 2024, AB 2188 will make it unlawful for an employer to discriminate against an individual in any terms and conditions of employment if that discrimination is based on the individual’s use of cannabis off the job and away from work.

The statute makes clear that it will continue to allow employers to implement and enforce anti-drug policies in the workplace[i] – including testing – but it does act to limit one specific aspect of testing. Employers may continue screening applicants and employees for drug use so long as it does not discriminate against an individual based on drug testing methods that screen for nonpsychoactive cannabis metabolites (NCM).” In other words, employers cannot weed out applicants or employees based on drug tests that report a finding of metabolized tetrahydrocannabinol (THC) in the body.

According to Legislative findings, “THC is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.” However, once metabolized and stored in the body as NCM, THC no longer is an indicator of current impairment but merely an indicator of past consumption.

The new legislation does have its limits in that it does not apply to:

  • employees/applicants in the building and construction industry
  • applicants/employees hired for positions that require a federal government background investigation or security clearance; or
  • preempt state or federal laws requiring applicants/employees to be tested for controlled substances including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Although AB 2188 does not take effect until January 1, 2024, employers should begin the process of auditing current screening methods to ensure third party testing vendors will be able to provide compliant testing results by the 2024 deadline. A change in the law, even though it may not directly impact internal policies, is always an opportune time for review to ensure compliance and that handbook and safety policies/procedures are in keeping with current company practices.

[i] AB 2188 (Govt. Code Section 12954(b)) specifically provides, “[n]othing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.”