Starting January 1, federal laws protecting employees from the consequences of using Marijuana outside work will take place.

Signed by Governor Gavin Newsom in 2022, Assembly Bill 2188 added a section to the California Fair Employment and Housing Act that prohibits employment discrimination, including protection for California doctors sending abortion pills to other states, increased workers paid sick leave, and security for workers using marijuana outside work.

Anti-Discrimination Law

Employers are prohibited from discriminating in hiring, firing, or penalizing individuals based on their cannabis use outside of work and away from the workplace, effective January 1. However, employers can continue testing employees and job applicants for THC, the main active component in cannabis that shows potential impairment. AB 2188 prevents employers from discriminating if individuals test positive for non-psychoactive cannabis metabolites present in hair, blood, urine, and other bodily fluids. The legislature emphasizes that these metabolites only reveal recent cannabis consumption, not impairment.

The law does not supersede state or federal requirements for drug testing in employment circumstances, federal funding, license requirements, or contracts. Employers can still enforce drug policies, but employees are not allowed to possess, use, or be under the influence of cannabis while they are working.

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Which Employees Are Exempted From AB 2188?

The new law does not protect federal employees and individuals in building and construction trades. It excludes those hired for positions involving federal background checks and clearance.

Dominic Larson, a glazier specializing in installing various glass products for 22 years, looked into the upcoming changes. He believes the discrimination law is unfair as his industry isn't included, while safety-sensitive sectors like truck driving and healthcare are covered. Larson expressed confusion, questioning how smoking a joint at home could impact his job the next day, while professions like Amazon drivers seem unaffected by such regulations.

According to employment attorney Bernard Alexander, there is uncertainty in the law, mainly because "impairment" is not clearly defined. He raises the question of how someone can prove that an employee is high on the job, considering that cannabis can stay in the system for extended periods. The presence of it doesn't necessarily mean impairment.

Priory Medical Group reports cannabis is detectable for up to three months.

AB 2188 mentions that employers will use a test to detect impairment but does not provide details on how the test will operate. According to Alexander, this lack of specificity may lead to challenges, as there could be situations where the tests are inaccurate.

Larson has stopped smoking because he could face testing anytime, but he believes using weed outside of work shouldn't be an issue. He emphasizes that if the state promotes a non-discrimination law, it should either include his industry or explain why it's treated differently.

In October, Newsom signed Senate Bill 700 into law, preventing most employers from asking job applicants about their previous cannabis use starting next year. 

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