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Governor Newsom Signs Bill Prohibiting “Discrimination” With Respect to Off-Duty Cannabis Use

On Behalf of | Sep 21, 2022 | Employment Law, New Law

On September 18, 2022, Governor Newsom signed Assembly Bill 2188 which amends California’s Fair Employment and Housing Act to prohibit discrimination in hiring, termination, or any term or condition of employment, or otherwise penalizing a person based on a person’s use of cannabis off the job and away from the workplace.

This legislation makes California one of a handful of states which will limit an employer’s discipline based on off-duty cannabis use.  The prohibition does not apply to an employee in the building and construction trades, in instances where state or federal law require screening, and scientifically valid pre employment drug screening conducted through methods that do not screen for non psychoactive cannabis metabolites (e.g., cannabidiol).  Crucially, the legislation states, “Nothing in this section permits an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace….”

The legislation does not appear to prohibit pre employment testing for psychoactive cannabis metabolites (e.g. tetrahydrocannabinol (THC)).  However, the legislation raises questions about post-accident testing and demonstrating whether the presence and/or amount of cannabis psychoactive metabolites, such as THC, indicates that the employee was impaired at the time of an accident.

This law will take effect January 1, 2024, but employers should consider consulting with counsel before taking adverse action against an employee based on off-duty cannabis use prior to that time.  Employers should consult counsel in anticipation of compliance with this new law.

For questions about your drug screening compliance and consideration of marijuana use in employment decisions, please contact the attorneys at Sagaser, Watkins & Wieland, PC.