September 27, 2022

California’s Assembly has passed a bill containing employment protections for marijuana users. The bill passed in the state Senate along party lines. It is now on its way to Governor Gavin Newsom, and he will have until the end of September to sign it into law.

If put into law, the bill (AB 2188) will take effect on January 1st, 2024. The bill will make it illegal for an employer to discriminate against any individual in hiring, firing, or any term or condition of employment based on cannabis use outside of working hours and away from the workplace. However, the law will not prohibit an employer from forbidding the use of marijuana while on the job. In addition, employers may take action against workers who work under the influence.

The law also provides carve-outs for pre-employment drug testing and certain employers. These employers include those requiring federal background investigations, security clearances, and building and construction trades. AB 2188 also provides exceptions for employers required to test as a condition of employment under state or federal law. Further exceptions include federal licensees, recipients of federal funding, and federal contractors required to maintain drug-free workplaces.

The bill also makes significant adjustments to how employers may test for suspected marijuana use in the workplace. AB 2188 prohibits employers from taking disciplinary action against employees who test positive for marijuana metabolites. Instead, it requires employers to use testing methods, such as saliva testing, to determine whether an individual is actively under the influence.

Though celebrated by labor unions and others who support protecting employees’ rights to perform legal activities outside the workplace, the law remains less welcomed by other affected groups, such as businesses. Business groups criticize means to interpret the law and how it gives marijuana users a protected status similar to that of race and national origin. Though these arguments led to some close votes on the measure earlier in the year, it still passed the final say in the Assembly with a wide margin.

If the Governor signs AB 2188 into law, California will join six other states in providing recreational marijuana users with employment protections. The six other states with similar laws include Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island. In addition, 21 states currently have laws protecting medical marijuana users from discrimination.

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