In 2022, California passed Assembly Bill (AB) 2188 prohibiting employers from discriminating against job candidates and employees based on “the person’s use of cannabis off the job and away from the workplace.” We explain what Golden State employers can expect.
Recreational marijuana use has been legal in California since 2016, and medical marijuana has been permitted even longer. However, AB 2188 is the first California state law to specifically extend workplace protection to marijuana users. It specifically safeguards against discrimination based on drug testing and health screenings like “an employer-required drug screening test” that detects “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
First, it’s important to understand that pre-employment drug screenings are still legal—employers and management simply cannot discriminate based on a positive marijuana test. Furthermore, employers are still allowed to restrict marijuana use on the job. AB 2188 does not make it legal for employees to possess, be impaired by, or use marijuana while on the job. Thus, if an accident occurs on the job and there is reasonable suspicion that the employee involved was under the influence, testing and adverse action based on the test results are permitted.
However, given this new legislation, it is crucial for California employers to refine their drug policies and communicate them clearly to their staff. Furthermore, employee drug testing should always be conducted with a trusted screening partner to ensure every step is above board with the recent regulations. We are honored to be that trusted screening partner for many businesses and organizations in the Golden State.