Under new state laws, employers will not be able to reprimand or fire employees for off-duty cannabis use
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SAN DIEGO (KSWB) — California employers will soon be barred from discriminating against employees or applicants based on cannabis use outside of the workplace.
On Jan. 1, a new set of state laws — Assembly Bill 2188 and Senate Bill 700 — that expand the state’s Fair Employment and Housing Act to add certain employment protections for those who engage in marijuana use will go into effect.
AB 2188 was passed and signed into law by Gov. Gavin Newsom in 2022. SB 700, which was signed this year, clarified and expanded certain provisions of AB 2188 before it was set to go into effect in 2024.
Under the new laws, it will be illegal for employers with five or more employees to penalize potential or current workers for off-duty cannabis use. SB 700 specified at this protection prohibits an employer from asking an applicant about their prior use of the substance, except if they are permitted to consider a criminal history with cannabis-related crimes.
The laws also bar employers from reprimanding workers who fail an employer-required drug screening test with a positive test of “non-psychoactive cannabis metabolites.” These metabolites are a dormant footprint of cannabis that is stored in one’s body after the Tetrahydrocannabinol (THC) metabolizes.
Experts say most drug tests from employers primarily screen for these metabolites as opposed to active THC. Unlike active THC, the presence of metabolites usually does not indicate impairment and has not been found to lead to higher risk for workplace accidents, according to the National Organization for the Reform of Marijuana Laws (NORML).
However, these new laws do not bar other measures that employers may take to maintain a drug-free workplace.
According to AB 2188, employers can still screen workers for the presence of active THC and take disciplinary measures against employees who are impaired in the workplace.
Certain types of employers — like those in construction trades or in workplaces that receive federal funding — who are required by federal law to test for controlled substances are exempt from these testing protections.
“While there is consensus that no one should ever show up to work high or impaired, testing positive for this metabolite has no correlation to workplace safety or productivity,” Assemblymember Sharon Quirk-Silva, who authored AB 2188, said in a 2022 report. “Testing for THC may indicate an individual is impaired at work and is a better way to maintain work place safety. AB 2188 is a balanced solution that will protect the rights of employees and employers.”
California voters legalized marijuana for recreational use by adults in the 2016 referendum, Proposition 64. The ballot measure came about a decade after voters approved the removal of restrictions for medicinal cannabis use in the state.
Despite being legal, advocates say that workplace discrimination against employees who use cannabis lawfully remains a pervasive issue — one that disproportionately impacts Black communities.
According to a study from the American Addiction Centers, Black people are more than twice as likely to be reprimanded or fired for failing a drug test compared to their white counterparts, who reported more leniency from employers.
California joins seven other states with laws on the books aimed at protecting employment rights for recreational and medicinal marijuana users: Washington, Nevada, New York, New Jersey, Connecticut, Montana and Rhode Island.
Twenty states — including Arkansas, Delaware, Illinois, Maine and Pennsylvania — only prohibit workplace discrimination against medical marijuana users.
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