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.

If you have questions about the application of AB 2188 in your business or related issues, contact a Jackson Lewis attorney to discuss.

Tags: Cannabis, Drug Testing, THC, workplace safety
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Photo of Ellen E. Cohen Ellen E. Cohen

Ellen E. Cohen is a principal in the Los Angeles, California, office of Jackson Lewis P.C., providing comprehensive representation for management in employment disputes. She handles cases involving harassment, discrimination, retaliation, and wrongful termination in state and federal courts, as well as arbitration…

Ellen E. Cohen is a principal in the Los Angeles, California, office of Jackson Lewis P.C., providing comprehensive representation for management in employment disputes. She handles cases involving harassment, discrimination, retaliation, and wrongful termination in state and federal courts, as well as arbitration and administrative hearings.

Ellen takes a proactive approach in supporting her clients, providing valuable advice on a host of employment-related issues including employee discipline, termination, lay-off procedures, or accommodations under the ADA and FEHA. She knows how to offer strategic advice that is as practical as it is legally sound. Her adept handling of complex issues such as Family Medical Leave Act and state laws, wage and hour laws, and harassment and discrimination has made her an indispensable ally to her clients.

Perhaps most notable is Ellen’s commitment to understanding her clients’ businesses. She places great emphasis on working closely with clients, getting to know their unique operations, and building longstanding partnerships based on trust and mutual understanding. This approach allows her to devise tailored solutions that take into account not only legal risks but also business objectives.

Ellen is currently engaged in serving clients across various sectors such as restaurants, fitness, distribution, and warehousing. Her experience in these sectors enables her to effectively address industry-specific legal challenges and provide her clients with the confidence to focus on their business operations.

Just as clients have relied on Ellen’s legal knowledge, they also appreciate her compassionate approach to service. She understands the weighty implications of employment disputes and is committed to guiding her clients through the complexities with empathy and diligence. Whether it’s the most stressful litigation or a proactive advisory, Ellen ensures her clients are never alone in the process, striving always to secure the best possible outcomes.

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