April 2024

State Updates

 

California adds employment protections for off-duty cannabis use

11/03/22

Author: ADP Admin/Tuesday, November 1, 2022/Categories: Compliance Corner , State Compliance Update, California

California has enacted legislation (Assembly Bill 2188) that prohibits employers from discriminating against individuals because of their use of cannabis while off duty. Assembly Bill 2188 takes effect on Jan. 1, 2024.

The Details:

Effective Jan. 1, 2024, California employers are prohibited from discriminating against individuals based on:

  • Their use of cannabis while off the job and away from the workplace.
  • An employer-required drug test that has found non-psychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

Employers will still be able to prohibit employees from using, possessing or being impaired by cannabis at work. The law also doesn’t prohibit an employer from taking adverse action against an individual based on a scientifically valid preemployment drug screening conducted through methods that don’t screen for nonpsychoactive cannabis metabolites.

Drug Testing:

By way of background, Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can cause impairment and psychoactive effects. After THC is metabolized, it's stored in the body as a nonpsychoactive cannabis metabolite. While these metabolites can show cannabis consumption in prior weeks, they don’t indicate impairment.

As a result of Assembly Bill 2188, the drug tests that only show the presence of nonpsychoactive cannabis metabolites (and not impairment) will generally be off limits to employers beginning in 2024. Instead, employers must rely on valid alternative tests, including impairment tests, which measure an individual employee against their own baseline performance, and tests that identify the presence of THC in an individual’s bodily fluids.

Exemptions:

The law doesn’t apply to:

  • An employee in the building and construction trades.
  • Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense, or equivalent regulations applicable to other agencies.

The law also doesn’t preempt state or federal laws requiring applicants or employees to be tested for controlled substances (and the manner in which they are tested). This includes laws and regulations for receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Next Steps:

  • Consult legal counsel to determine the impact of Assembly Bill 2188 on current drug testing policies and practices, including whether an exemption applies.
  • Unless an exemption applies, ensure drug testing policies and practices comply with Assembly Bill 2188 by January 1, 2024.

Please contact your ADP service professional if you have any questions.  

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