Effective Jan. 1, 2024, California Law Will Restrict Employers From Using Traditional Drug Tests To Test For Cannabis Use While Off The Clock And Away From The Workplace

California employees will soon be granted legal safeguards against discrimination for their personal use of cannabis or marijuana outside of work hours and away from the workplace.

California’s Fair Employment and Housing Act (AB 2188) has been amended to introduce new protections. Governor Gavin Newsom approved the amendment on Sept. 18, 2022, and it will be enforced starting Jan. 1, 2024. The bill prohibits employers from discriminating against individuals based on their use of cannabis products outside of work, including refusing to hire, penalizing, or terminating them.

Despite California’s pioneering role in legalizing medical marijuana in 1996 and recreational use in 2016, AB 2188 marks a significant milestone as the first law in the state to offer explicit workplace protections for employees who utilize it for either purpose.

Pre-employment drug testing

AB 2188 prevents employers from using drug screen results against applicants in cases where the test shows previous marijuana use. Employment-related drug testing now focuses on assessing impairment during work hours and at the worksite, rather than detecting long-term drug use.

In addition, employers will no longer be allowed to inquire about an individual’s cannabis or marijuana usage.

Termination based on marijuana usage

Prior to AB 2188, employers had the authority to reprimand employees who engaged in the use of medical or recreational marijuana outside of work hours. However, this practice will soon be deemed unlawful.

For instance, if an individual decides to use marijuana recreationally during their time off and away from work, and then returns to work on Monday, their employer cannot penalize them for their cannabis consumption over the weekend.

Exceptions to the protections

Employers are still able to enforce restrictions on marijuana use in the workplace under AB 2188. Employees are prohibited from possessing, being impaired by, or using cannabis during working hours, as stated in the bill.

The bill clarifies that it does not impact an employer’s responsibility to maintain a drug-and-alcohol-free workplace.

Individuals working in the building and construction trades, as well as those seeking or holding federal jobs that require clearance from the U.S. Department of Defense, may still face employment denial or disciplinary measures due to their use of cannabis outside of work.