Bill Before California Senate Would Create Employment Protections for Marijuana Users

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Bill Before California Senate Would Create Employment Protections for Marijuana Users
September 19, 2022

In 2016, recreational marijuana use became legal in California but remained illegal federally. This law left a confusing issue for many workplaces due to its lack of specific regulations regarding employment. A new California bill aims to provide employment protections for off-duty marijuana usage to supplement the 2016 decision.

AB 2188 has reached California’s Senate. It would prohibit employers from penalizing employees for the off-duty use of cannabis. The bill would also amend the state’s Fair Employment and Housing Act (DFEH). This Act forbids many types of employment discrimination. It makes it illegal to discriminate against an individual in hiring, firing, or any term or condition of employment based on the use of cannabis off-hours and away from the workplace. This law would be enforceable in the same manner as other discrimination claims. Aggrieved employees could file DFEH charges and a civil lawsuit.

Though AB 2188 provides employment protections for users of marijuana, it does not prevent employers from maintaining a drug-free workplace. Employers can still prohibit workers from possessing or being under the influence of cannabis in the workplace or during work hours. This clarification means that, though employees can use marijuana in their free time, the potential consequences are still there if anyone brings cannabis into the workplace or shows up under the influence.

This bill will significantly adjust how employers test for suspected marijuana use. The bill would forbid disciplinary action based upon marijuana metabolites, instead requiring impairment and saliva-based testing. This testing more effectively determines whether someone is acting under the influence. However, there are still concerns regarding the cost and efficacy of these testing methods under some conditions.

The bill provides carveouts for building and construction trades, federal contractors, recipients of federal funding, and federal licensees that are required to maintain a drug-free workplace. It also would not affect occupations that are required under state or federal law to test for the use of controlled substances. Finally, this law also does not affect any employment decisions based on the outcome of a scientifically supported drug test that does not screen for psychoactive cannabis metabolites.

The California Assembly passed AB 2188 with a 42-23 vote in favor of its passage, and now it rests with the state Senate to decide if it will proceed to the Governor’s desk. The future of this bill remains uncertain, but if it came to pass, it would have a significant impact on many employers’ testing and employment policies.

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