Workers to Be Protected from Using Cannabis during Personal Time with New California Law

In 2022, California Governor Gavin Newsom signed into law, Assembly Bill 2188 (1,2). This bill is a section supplemented into the California Fair Employment and Housing Act. It will ban several types of discrimination against employees.

Assembly Bill 2188 will officially be enacted beginning January 1, 2024 (1). With this new legislation, employers will no longer be able to discriminate from firing, hiring, or even punishing a person because they consume cannabis in their own personal time. Although this is a win for employees, businesses will still be able to test employees and individuals they are interested in hiring for tetrahydrocannabinol (THC) (1). THC is the main psychoactive compound found in cannabis which can cause impairment (1). Assembly Bill 2188’s purpose is to prevent businesses from being able to penalize an employee or future employee if they test positive for THC or other non-psychoactive metabolites found in cannabis (1).

The legislature mentioned that (1) “These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.” Additionally, they said that this, “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.” The bill only protects workers when they use cannabis in their free time and not when they are actively working.

Although Assembly Bill 2188 is meant to protect workers, this does not include everyone. Such as, federal employees and individuals that work in building and construction trades (1). NBC San Diego interviewed Dominic Larson, who installs various glass products (1). “Somehow a joint that I smoke at home is going to affect my job the next day, but not an Amazon driver? I just don't understand stuff like that,” Larson told NBC San Diego (1).

Those not protected from the law, may find it unfair and not equally represented.

“Just because you have cannabis inside your system, does that mean that you’re impaired? Cannabis can stay inside the system for long periods of time,” Bernard Alexander, an employment lawyer commented (1).

NBC San Diego mentioned that the Priory Medical Group (1) disclosed that cannabis use might be “detectable for up to three months.”

Alexander explained (1), “I think this is one of the areas where there will be growing pains because there are there may be circumstances where a person tests and the tests are not going to be accurate.”

Employment protections is not new in California. Governor Newsom approved Senate Bill 700 (3) back in October 2023. This law prevents certain businesses from inquiring on previous cannabis use with interested job applicants and will officially be enacted in 2024 (1,3).

References

1. Smith, D.; Schmiedeberg, R.; Menezes, S. 2024 CA Law Will Protect Workers Using Cannabis on Own Time - Except in These Industries https://www.nbcsandiego.com/news/california/2024-ca-law-will-protect-workers-using-cannabis-on-own-time-except-in-these-industries/3383674/ (accessed Dec 19, 2023).
2. Bill text https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2188 (accessed Dec 19, 2023).
3. Colli, M. California Expands Cannabis Rights for Patients and Employees https://www.cannabissciencetech.com/view/california-expands-cannabis-rights-for-patients-and-employees (accessed Dec 19, 2023).