Offsite and Outside-Of-Work Marijuana Use Now OK in California

CA Marijuana Law - Sept 2022

It will soon be illegal for California employers to let workers' offsite and outside-of-work marijuana use be a factor in hiring or firing decisions, according to a new state law.

Governor Gavin Newsom recently signed into law AB 2188 that makes California the seventh state in the U.S. that doesn’t permit employers to discriminate against workers who smoke cannabis "off the job and away from the workplace."

The new law goes into effect January 1, 2024.

Under the current law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity to seek, obtain, and hold employment without discrimination, abridgment, or harassment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. The act prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices.

What Activity Does the New Law Protect?

The bill makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based on the person’s use of cannabis off the job and away from the workplace. The exception to this is for 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 that doesn’t indicate current impairment.

Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it’s stored in the body as a nonpsychoactive cannabis metabolite. These metabolites don’t indicate impairment, only that an individual has consumed cannabis in the last few weeks.

AB 2188 exempts certain applicants and employees from its provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance.

The bill doesn’t 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 was one of several cannabis-related bills that expanded the legal market and addressed harms from past cannabis bans.

“For too many Californians, the promise of cannabis legalization remains out of reach,” said Governor Newsom. “These measures build on the important strides our state has made toward this goal, but much work remains to build an equitable, safe and sustainable legal cannabis industry. I look forward to partnering with the Legislature and policymakers to fully realize cannabis legalization in communities across California.”

Assemblymember Bill Quirk (D-Hayward), who authored AB 2188, said, “Nothing in this bill would allow someone to come (to work) high” as AB 2188 still permits employers to prohibit the use of, and impairment by, marijuana in the workplace.

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