California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

California employers may soon be barred from discharging employees or refusing to hire individuals based on their off-duty use of marijuana, under a new bill headed to the governor’s desk. On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which would prohibit employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.”

AB 2188—which amends the California Fair Employment and Housing Act (FEHA), the state’s employment antidiscrimination law—will further make it an unlawful employment practice to discriminate against an individual based on “an employer-required drug screening test” that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The bill passed the Senate on August 29, 2022, and a day later, passed a concurrence vote in the Assembly, sending it to California Governor Gavin Newsom for approval. The governor has until September 30, 2022, to sign or veto bills. If approved, the bill would take effect on January 1, 2024.

While recreational use of marijuana, or cannabis, has been legal in the Golden State since 2016 and medical marijuana has been legal since 1996, the bill, if approved by Governor Newsom, will be the first law in the state to specifically provide workplace protections for recreational and medical marijuana users.

However, AB 2188 will still allow employers to restrict marijuana use on the job. The bill would not allow employees “to possess, to be impaired by, or to use, cannabis on the job.” The bill also states that nothing contained in it “affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” or “any other rights or obligations of an employer specified by federal law or regulation.”

Additionally, the bill includes carve outs for employees in “the building and construction trades” and for applicants or employees for federal jobs requiring clearance from the U.S. Department of Defense.

Business groups opposed AB 2188 over concerns that it will limit or eliminate drug testing for marijuana in the workplace and make it more difficult to discipline for reasonable impairment on the job from marijuana. These concerns are heightened due to questions over the feasibility, costs, and reliability of impairment tests compared to traditional drug screens for metabolites.

California was the first state to legalize medical marijuana with Proposition 215 in 1996, but that law did not provide workplace protections for use. Surprisingly, even with courts around the country becoming more employee-friendly with marijuana issues, California has remained more employer-friendly in its court decisions. In 2008, the Supreme Court of California ruled that a disabled individual who used medical marijuana was not protected under the FEHA, and in 2016, the United States District Court for the Eastern District of California issued a similar ruling.

In 2016, California voters approved Proposition 64 to legalize recreational marijuana. That proposition purported to keep intact the rights of public and private employers to enforce workplace anti-drug policies. Meanwhile, courts in at least two other states, Nevada and Colorado, have found that workplace protections for lawful, off-duty conduct more generally, do not apply to marijuana use because marijuana is still classified as a Schedule I controlled substance under the federal Controlled Substances Act.

Key Takeaways

AB 2188 would make California the latest in a growing list of states, including New York, with legalized marijuana to enact workplace protections for its use outside of work. Still, the bill, if approved by the governor, would permit employers to continue to enforce drug- and alcohol-free workplace polices and continue to test for marijuana impairment so long as the tests are not focused on “nonpsychoactive” chemicals in the body. Nonetheless, the implementation of such tests presents a challenge for employers and creates questions about employers’ ability to enforce workplace policies and discipline employees who are impaired on the job. If ultimately approved by the governor, California employers may want to review and update their workplace drug policies and their drug screening protocols.

Ogletree Deakins will continue to monitor developments with respect to the legislation and will post updates on the California and Drug Testing blogs. In addition, further information on federal, state, and major marijuana laws is available in the firm’s OD Comply: Marijuana subscription materials, which are updated and provided to OD Comply subscribers as the law changes, and via the firm’s webinar and podcast programs.