California Passes Bill Protecting Off-Duty Cannabis Use

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On September 19, 2022, Governor Newsom signed AB 2188 (the Bill) into effect, providing protections for off-duty cannabis use in the state of California.

Legislative Declarations

To start with, the legislature makes a number of declarations in the Bill pertaining to THC, the workplace, and impairment. The Bill states that although tetrahydrocannabinol (THC) can indicate impairment and cause psychoactive effects, after metabolization it is stored in the body as a non-psychoactive metabolite and therefore does not indicate impairment. As such, many drug tests do not indicate that an employee is impaired, but rather indicate that there is the presence of non-psychoactive metabolites in the donor’s body that do not correlate with on-the-job impairment.

 Additionally, the legislature declares that employers now have access to several tests that don’t rely on the presence of non-psychoactive cannabis metabolites, such as impairment tests or tests identifying the presence of THC in bodily fluids.

What Does the Bill Say for Employers?

Employers are not permitted to discriminate in terms of hiring, termination, conditions of employment, or otherwise penalize an individual if:

    The individual uses cannabis off the job and away from the workplace.

    A required drug test finds that an individual has non-psychoactive cannabis metabolites in their hair, blood, urine, or bodily fluid.

Employers can:

    Discriminate in hiring, terms or conditions of employment, or otherwise penalize an individual based on a “scientifically valid” pre-employment test conducted using a method that does not screen for non-psychoactive cannabis metabolites.

Employees cannot possess, be impaired by, or use cannabis on the job. Employers are not impacted in their rights or obligations to maintain a drug- and alcohol-free workplace.

Employers in the building and construction trades are not required to comply with the Bill. Additionally, applicants/employees that are in/hired for positions requiring federal government background investigation or security clearance are exempt from this Bill (see the Bill for full details). The Bill does not preempt state or federal laws requiring tests for controlled substances (see the Bill for full details).

When is Compliance Required?

The bill is effective January 1, 2024, meaning employers in California must comply by that date.

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