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Volume XIII, Number 34

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High Times Ahead for Employers in California

On September 18, 2022, Governor Newsom signed California Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

An employer can still refuse to hire an applicant based on a scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites. These alternative tests include impairment tests, which measure a person against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol (THC) in an individual’s bodily fluids. THC is a chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After THC is metabolized, it is stored in the body as non-psychoactive cannabis metabolites, which do not indicate impairment, only that an individual has consumed cannabis recently.

The bill does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace. The bill does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

The bill also exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades, and applicants and employees in positions requiring a federal background investigation or clearance.

AB 2188 takes effect on January 1, 2024.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 262
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About this Author

Ellen Cohen, Jackson Lewis, employment attorney
Associate

Ellen E. Cohen is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. Ms. Cohen represents management in all types of employment disputes including harassment, discrimination, retaliation, and wrongful termination cases in both state and federal court, as well as in arbitration and administrative hearings.

Ms. Cohen also counsels clients on a wide range of employment-related issues, including employee discipline and termination, lay-off procedures, reasonable accommodations under the ADA and FEHA, leaves of absence under...

213-689-0404
Associate

Kishaniah Dhamodaran is an associate in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in various aspects of employment litigation, including wage and hour individual and class actions, representative actions under the Private Attorneys General Act (PAGA), discrimination, harassment, retaliation, and wrongful termination. She also provides preventive advice and counseling on workplace law matters.

Growing up in Malaysia, completing law school in England and moving to...

213-630-8212
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