Effective January 1, 2024, AB-2188 will amend Government Code section 12954 and make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon:
- Use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites;
- Or, a positive drug screening test for non-psychoactive cannabis metabolites in an individual’s hair, blood, urine, or other bodily fluids.
Exemptions from AB-2188
The new law does not change employers right to prohibit employees from possessing, being impaired by or using cannabis on the job. Thus, AB-2188 does not change the rights or obligations of an employer to maintain a drug- and alcohol-free workplace required by the Health and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.
Individuals working in the building and construction trades and positions requiring a federal government background investigation or security clearance in accordance with federal regulations are not covered by the new law.
Also, AB-2188 does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment or testing required by law to receive federal funding, federal licensing-related benefits or with respect to requirements for entering into a federal contract.
Policies should also be updated in accordance with the new law, once in effect.
If you have any questions about AB-2188, please feel free to contact us.