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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.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 250
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About this Author

Christopher W. Olmsted, Ogletree Deakins, Employment Law Compliance Attorney, Retaliation Claims Lawyer,
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Christopher Olmsted is a shareholder in the firm's San Diego office.

Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters. Mr. Olmsted's employment law compliance and litigation experience includes: California FEHA and Title VII discrimination, harassment and retaliation claims; wrongful termination claims; wage and hour compliance and defense of claims and labor agency audits; California CFRA, federal FMLA and...

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M. Tae Phillips, Ogletree Deakins, Employment litigation lawyer, Workplace Discrimination Attorney
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Tae focuses his practice on assisting clients with the many labor and employment challenges they face on a daily basis. He has been recognized by his peers by receiving an “AV Preeminent” rating by Martindale-Hubbell, and being selected as a “Rising Star” by Alabama and Mid-South Super Lawyers and the Birmingham Business Journal.

Aside from producing positive results, Tae maintains a client-centric approach to his practice and strives to provide exceptional and responsive client service. His primary goal in representing clients is to provide them with...

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In the Senior Marketing Counsel role, Zachary develops strategy for the firm’s blog and other content. He serves as a lead writer for articles and blog posts for publication on the firm’s website both individually and in consultation with firm attorneys. He also works closely with the Client Services department and firm attorneys to develop relevant content, including through use of webinars, publications, blogs, podcasts, and graphics.

Prior to joining Ogletree Deakins, Zachary served as a Senior Reporter for Law360, a leading online legal news publication, covering the sports and...

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