Governor Newsom Signs Law Protecting Employees’ Off-Duty Marijuana Use

Beginning on January 1, 2024, California employers will be prohibited from discharging employees or refusing to hire individuals based on their off-duty use of marijuana.

Assembly Bill (AB) 2188, the workplace marijuana legislation that Governor Gavin Newsom signed on September 18, 2022, amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination 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 law excludes certain groups of employees. For example, the law does not protect employees in the building and construction trades. The law does not apply to “applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense,” or other federal agencies.” The law “does not preempt state or federal laws requiring applicants or 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.”

Governor Newsom signed this measure along with nine others “to strengthen California’s cannabis laws, expand the legal cannabis market and redress the harms of cannabis prohibition,” according to a press release from the governor’s office. Among other bills, the governor also signed AB 1706, which seals certain prior marijuana-related convictions.

For more information on how AB 2188 will affect employers doing business in California, please join us for our upcoming webinar, “Enforcing Substance Abuse Policies Under California’s New Marijuana Anti-Discrimination Law,” on Monday, October 17, 2022, from11:00 a.m. to 12 noon Pacific. The speakers, Christopher W. Olmsted and M. Tae Phillips, will address the practical implications affecting substance abuse policies and employee drug testing. Register here.

Ogletree Deakins will continue to monitor developments with respect to guidance regarding AB 2188 and will post updates on the California and Drug Testing blogs. 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 podcast programs.