Governor Signs AB 2188 – Testing for Cannabis Use

On September 19, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188, by Assembly Member Bill Quirk (D-Fremont). AB 2188 amends Government Code Section 12954 relating to the use of cannabis.

Existing California law, the Fair Employment and Housing Act (FEHA), protects individuals’ rights to seek and hold employment without discrimination or harassment on account of specified classifications. In addition, FEHA prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices.

AB 2188, effective January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.

Nonetheless, AB 2188 continues to allow preemployment drug screening or upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. And, the bill exempts certain job applicants and employees from the bill’s provisions.

Moreover, AB 2188 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.

Section 1 of the bill provides three legislative findings and declarations, including that the intent of drug tests is to identify employees who may be impaired, but that, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job. Moreover, as science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.

Section 2 of the bill adds Government Code Section 12954 to do the following:

• It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:

• • The person’s use of cannabis off the job and away from the workplace.

• • An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

• An employee is not permitted 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, or any other rights or obligations of an employer specified by federal law or regulation.

Nonetheless, this new section of law does not apply to an employee in the building and construction trades; nor does this section apply to applicants or employees hired for positions that require a federal government background investigation or security clearance.

In addition, this section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Finally, this new section of law becomes operative on January 1, 2024.