New California Law Protecting Employees Using Marijuana Off-Duty

In recent years, the legalization of marijuana for recreational use in California has led to significant legal developments regarding the rights of employees who use the substance. The enactment of Assembly Bill 2188 (AB 2188) and Senate Bill (SB) No. 700 has brought about essential changes in the state's Fair Employment and Housing Act, impacting employers and employees in relation to marijuana use and drug testing.

Off-Duty Marijuana Usage Protection

AB 2188, which took effect on January 1, 2024, amended California’s Fair Employment and Housing Act to protect employees’ off-duty, off-site cannabis use. It prohibits employers from discriminating against employees for off-duty use, with certain exceptions. This amendment offers crucial protections to employees who engage in off-duty marijuana use, safeguarding them from adverse employment actions solely based on their cannabis consumption outside of work hours.

Exceptions to Off-Duty Marijuana Usage Protection:

- The protection does not apply to those working in the building or construction trades, as they often operate in high-risk environments requiring comprehensive safety precautions.

- It also does not extend to employees hired for positions that necessitate federal background investigations or security clearances.

- Additionally, the protection does not override state or federal laws that mandate testing job applicants or employees for controlled substances.

Drug Testing and Nonpsychoactive Cannabis Metabolites

Furthermore, AB 2188 prohibits discrimination against employees based on drug test results that reveal only nonpsychoactive cannabis metabolites in their system, as opposed to psychoactive cannabis metabolites. This means that if an employee tests positive for marijuana during a drug screen but the testing reveals no traces of psychoactive metabolites, the employer cannot use the positive test as the basis for disciplinary action or termination.

Traditional drug tests have been known to screen for nonpsychoactive cannabis metabolites, which can remain in the body for an extended period after cannabis use. The new law emphasizes that drug testing is intended to analyze impairment at work, and testing for nonpsychoactive metabolites that have no effect on impairment falls outside the purpose of drug testing.

Implications and Exemptions

It's important to note that the new law does not prohibit employers from conducting drug tests, but it does provide critical protections for employees in scenarios where traditional drug tests may not accurately reflect impairment at work. Moreover, the law stipulates that employees cannot be impaired by or use cannabis on the job, even for medicinal purposes. Employers found to have discriminated against an employee in violation of AB 2188 may face legal action and be subject to various forms of relief, including reinstatement, back pay, compensatory and punitive damages, as well as interest, fees, and costs.

Conclusion

The new California law stands as a significant step in protecting employees from discrimination based on off-duty cannabis use and nonpsychoactive cannabis metabolites detected in drug tests. It is essential for both employers and employees in California to understand the implications of this law and ensure compliance with its provisions. Employers are encouraged to review and revise their antidiscrimination policies and drug use policies to align with the new protections concerning prior cannabis use as outlined in SB 700.

In conclusion, the enactment of AB 2188 and SB No. 700 marks a significant shift in the legal landscape surrounding marijuana use and employment in California, aiming to strike a balance between protecting employees' rights and ensuring workplace safety and productivity.