California employees will soon officially have protections from discrimination based on their use of cannabis or marijuana while off the clock and away from the workplace.
The new protections come from an amendment to California’s Fair Employment and Housing Act (AB 2188) which was approved by Governor Gavin Newsom on Sept. 18, 2022, and goes into effect on Jan. 1, 2024. The bill makes it unlawful for an employer to not hire, penalize, or terminate a person based on their use of cannabis products outside of work.
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Although California was the first state to legalize medical marijuana in 1996 and became one of the first to legalize the recreational use of marijuana in 2016, AB 2188 is the first law in the Golden State to specifically provide workplace protections for employees who use it for either reason.
Pre-employment drug testing
AB 2188 prohibits employers from holding drug screen results against an applicant if the test reveals evidence of past marijuana use. The new general intent of employment-related drug testing is to test for impairment on the job and/or at the worksite, not for long-term use.
Additionally, it will become illegal for employers to ask potential employees if they have used cannabis or marijuana.
Termination based on marijuana usage
Before AB 2188, employers were within their right to discipline an employee who used medical or recreational marijuana during their time off, however, that notion will soon be illegal.
For example, if a person chooses to use marijuana for recreational purposes on the weekend while off the clock and away from the workplace, and then show up for work on Monday, an employer cannot hold their weekend cannabis consumption against them.
Exceptions to the protections
AB 2188 still allows employers to restrict marijuana use on the job. The bill does not allow for employees to possess, be impaired by, or use cannabis on the clock.
The bill also states that nothing contained in it “affects the rights or obligations of an employer to maintain a drug-and-alcohol-free workplace.”
Employees in “the building and construction trades” and applicants or employees for federal jobs who require clearance from the U.S. Department of Defense may still be denied employment or face disciplinary action for cannabis usage outside of work.
