On September 18, 2022, the Governor approved AB 2188, which amends the California Fair Employment and Housing Act (FEHA), California’s employment antidiscrimination law. Beginning on January 1, 2024, it will be unlawful for employers to discriminate against a person in hiring, termination, any term or condition of employment, or otherwise penalize a person for:
- (1) the use of cannabis off the job and away from the workplace, except for scientifically valid pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites, or
- (2) an employer-required drug screening test that finds the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
Notably, AB 2188 does not require employers to permit an employee to possess, be impaired by, or use cannabis at work, and it does not affect the rights or obligations of an employer to maintain a drug and alcohol-free workplace.
AB 2188 excludes certain workers from these discrimination protections, such as employees in the building and constructive trades, and applicants/employees hired for positions requiring a federal government background investigation or security clearance. It also doesn’t pre-empt other existing laws or regulations requiring applicants or employees to be tested for controlled substances, including as a condition for employment; or laws conditioning receiving federal funding or federal licensing-related benefits, or entering into a federal contract on drug testing.
What does this mean for employers and what should they do before January 1, 2024?
Employers must ensure that when they send employees for drug testing (pre-employment drug screening and impairment tests), they specify that they are only seeking to screen for the presence of tetrahydrocannabinol (THC), not cannabis metabolites generally unless their employees fall within one of the exclusions.
For employers who conduct random drug testing or pre-employment screening, we recommend updating any drug testing forms and asking that their laboratory vendor partners update their protocols for the drug screening being conducted for employees to specifically screen for THC and its metabolites and not screen for or reveal results based on the presence of other cannabis metabolites, such as CBD or CBDA metabolites, that are non-psychoactive.
Employers should also review their drug/alcohol testing policies and anti-discrimination policies to ensure they comply with the new law and train HR professionals and supervisors regarding these changes.