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Volume XII, Number 334

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New California Legislation Protects Workers’ Personal Marijuana Use

On September 18, 2022, California Governor Gavin Newsom signed into law Assembly Bill (“AB”) 2188, which prohibits employer discrimination based on employees’ use of cannabis off the job and away from the workplace.  While recreational use of cannabis, or marijuana, has been legal in California since 2016, the new law goes farther in specifically providing protections for employees who consume the substance.  AB 2188 makes California the most recent state to provide workplace protections for use of marijuana away from the workplace.  The bill will become effective beginning January 1, 2024.

AB 2188 amends the California Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate again a person in hiring, termination, or any term or condition of employment based on (i) the “person’s use of cannabis off the job and away from the workplace,” or (ii) an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”  The new law makes clear that employers are still permitted to make employment decisions based on tests for marijuana impairment as long as such tests do not rely on the presence of nonpsychoactive metabolites that are present in the body after consuming marijuana and specifically Tetrahydrocannabinol (THC), the substance that is primarily responsible for the psychoactive effects of marijuana use.  These metabolites can remain in the body for weeks after an individual has consumed marijuana.  Moreover, the bill states that nothing in its language “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.”

The law also includes several carve-outs for specific industries and employees.  AB 2188 will not apply to employees in the building and construction trades or applicants or employees hired for positions that require a federal government background investigation or security clearance.  The bill also explicitly states it does not pre-empt other laws requiring applicants or employees to be tested for controlled substances, including laws relating to the receipt of federal funding, federal licensing-related benefits, or entering into federal contracts.

California employers may want to review and update their workplace drug policies and procedures for drug testing, if applicable.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 279
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About this Author

Julie Trankiem Employment Attorney Hunton Andrews Kurth Law Firm
Partner

Julia’s practice focuses on the representation of management in a broad range of employment matters under state and federal law.

Julia extensively collaborates and partners with companies to solve complex employment issues. She has represented employers across wide-ranging industries in class, collective, representative and hybrid actions brought under the Fair Labor Standards Act and state wage and hour laws. Her wage and hour experience includes litigation involving claims of misclassification, off-the-clock work and unpaid overtime, and meal and rest period violations. She has...

213 532 2119
Michael A. Pearlson Labor and Employment Attorney Hunton Andrews Kurth Los Angeles
Associate

Michael is an associate in the Labor and Employment group, focusing his practice on complex discrimination, harassment, and wage and hour disputes, including class actions and PAGA matters.

Michael’s experience includes wage and hour class actions; California Private Attorneys General Act (PAGA) suits; and workplace discrimination, harassment, and retaliation matters.

213-532-2012
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