Governor Newsom recently signed Assembly Bill 2188 (“AB 2188”) into law, which prohibits drug testing of employees for off-duty marijuana use. AB 2188 is an amendment to the Fair Employment and Housing Act (FEHA), which is intended to prevent employment discrimination, and is effective as of January 1, 2024.
Specifically, AB 2188 prohibits an employer from discriminating against a person in hiring, termination, or any term or condition of employment based upon:
(1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings; or
(2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
AB 2188 does not prohibit all drug tests which test for marijuana, as it still allows tests which determine if an employee is currently under the influence of marijuana (as contrasted with many current types of testing, which detect relatively recent use or exposure but which do not reflect whether the employee is under the influence of cannabis based on the appearance of those non-psychoactive cannabis metabolites). Employers will also still be allowed to prohibit employees from possessing or using marijuana while they are at the workplace or otherwise working.
There are certain categories of employees who are excepted from AB 2188 and who may still be tested for off-duty cannabis use. The exceptions include employees in the construction field, employees whose position requires a federal background check, employees who are required by law to be tested, and employees who work at employers that receive certain federal funding.
It is important for employers to prepare for the enactment of AB 2188 by evaluating their current drug testing procedures to ensure that they comply with the new law. In addition, employers who receive federal funding should begin to determine if their employees may fall within one of the exceptions to AB 2188. Further, all employers should be aware of any laws which require their employees to be drug tested.