California Employees May Be Protected from Discrimination Against Off the Clock Cannabis Use

A new California bill (Assembly Bill 2188) could further expand what is considered discriminatory conduct against employees by employers. AB 2188 would prevent discrimination against employees and applicants based on any “off the clock” cannabis-use. For example, an employer would not be allowed to fire, demote, or retaliate against an employee based on their personal cannabis use, outside of work hours and away from the workplace. But the bill will not apply to any employment decisions based on “scientifically valid,” pre-employment drug tests “that do not screen for psychoactive cannabis metabolites.”

There are also other limitations. AB 2188 still permits employers to maintain a safe and drug free work environment and will not allow “an employee to possess, to be impaired by, or to use, cannabis on the job.” For safety reasons, the bill also doesn’t apply to employees who are in “building and construction trades.” Likewise, the bill won’t apply to employees who are in positions that require a federal government background check or security clearance. Finally, any federal, state, or local laws related to controlled-substance testing will remain enforceable.

If this bill is passed by the Senate and signed by Governor Newsom in its current form, it will allow an extra year for implementation and go into effect in January 2024. Should you require any information on how this bill could impact your business, do not hesitate to contact our office.


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