New York state and Washington, D.C. are two jurisdictions that introduced protections for cannabis users in the last year. Both have introduced or passed laws that limit employment decisions based on a candidate’s cannabis use. And the state of California is up next.
The California Governor recently signed AB-2188, the state’s version of a cannabis use anti-discrimination bill. It will take effect on January 1, 2024.
California’s law takes a unique approach. The law specifies restrictions based on certain cannabis metabolites. As passed, the bill restricts what actions employers can take action based on a drug test that shows the presence of nonpsychoactive cannabis metabolites.
According to language in the bill, tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. If only the metabolites are present, they do not indicate impairment, but rather prior cannabis use. Most positive tests for marijuana fall in this category.
Under the law, it is unlawful for an employer to discriminate against a person in hiring, termination, any term or condition of employment, or general penalization based on:
- The person’s use of cannabis off the job and away from the workplace. This does not prohibit an employer from making certain employment decisions based on drug screening that does not screen for nonpsychoactive cannabis metabolites.
- A drug screen that has found a person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
The law doesn’t permit employees to possess, use, or be impaired by cannabis while on the job. It also does not affect an employer’s rights or obligations to maintain a drug and alcohol-free workplace as specified in state law or any other employer rights or obligations under federal law or regulation. Likewise, the law does not apply to building and construction employees hired for positions requiring a federal background investigation or security clearance. Additionally, the law does not preempt federal law requiring drug testing for controlled substances as a condition of employment. Those may include jobs with employers that receive federal funding, federal licensing-related benefits, or those that enter into a federal contract.
The new cannabis use protections sweeping the country has some employers making changes to their drug testing strategy. Laws change frequently and this may be a topic to consider monitoring. Employers should work with their legal teams to understand how these laws may impact them. Likewise, they may want to consult with an attorney before changing what they currently do.
