Although California has legalized the recreational use of marijuana, its use remains illegal at the federal level and is considered a Schedule 1 drug. The legalization of recreational marijuana has presented multiple issues for California employers primarily for those who prohibit drug use in the workplace.

Assembly Bill 2188, if passed, may provide employees and applicants protection from being penalized by their employer for off hours cannabis use. This bill would amend California’s Fair Employment and Housing Act to make it an unlawful employment practice for an employer to discriminate against a person in hiring, termination, and any term or condition of employment based on cannabis use outside of work hours and away from the workplace. If an employer violated the proposed law, an employee could file a DFEH charge and a civil lawsuit with the same remedies as any other California discrimination claim.

The bill still allows employers to maintain drug-free work environments, and does not permit “an employee to possess, to be impaired by, or to use, cannabis on the job.”

The bill’s primary focus is to change the way employers test for suspected cannabis use. Most existing tests can determine whether cannabis has been used in the previous weeks. However, there are now some newer tests available that can determine if someone is currently impaired.

The proposed law would not apply to employees who are in “building and construction trades”, nor does it apply to employees or applicants who are in positions that require a federal government background check or security clearance pursuant to the Department of Defense. Significantly, the proposed law would not preempt any federal or state laws that require testing for controlled substances and would not apply to employment decisions based on “scientifically valid” pre-employment drug test methods “that do not screen for psychoactive cannabis metabolites.”

The bill has passed the State Assembly and it is currently before the California Senate. If passed and signed by Governor Newsom in its current form, it will allow an extra year for implementation and go into effect in January 2024.

Employers should consider whether there is a business legal requirement or necessity for them to test for cannabis use. If as an employer you test employees for marijuana use, contact your legal counsel to determine whether such testing is required and should be continued. Without a legal requirement or business necessity, should this bill pass, employers may be subject to discrimination claims especially

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.