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California workers will soon enjoy official safeguards against discrimination related to their off-duty and off-site marijuana use following a change to the state’s Fair Employment and Housing Act, known as AB 2188, greenlit by Governor Gavin Newsom on Sept. 18, 2022, and set to take effect at the start of 2024.
Under the legislation, employers are barred from refusing employment, penalizing or terminating individuals based on their use of marijuana products outside of working hours.
Despite California’s pioneering move in 1996 to legalize medical cannabis and its subsequent approval of recreational use in 2016, AB 2188 stands out as the state’s inaugural law explicitly extending workplace protections to cannabis users, regardless of the purpose. AB 2188 introduces provisions that render employers unable to hold an applicant’s past cannabis use against them. Crucially, the measure shifts the focus of employment-related drug testing toward identifying impairment during work hours or on the premises, distancing itself from scrutinizing historical marijuana consumption.
Moreover, the new legislation outlaws inquiries into an applicant’s cannabis use history, preventing employers from delving into this aspect during the hiring process. This marks a significant departure from previous norms, where employers retained the right to discipline individuals for off-duty recreational and medical cannabis use.
For instance, if an individual engages in recreational cannabis use during their leisure time over the weekend and arrives at work on Monday, employers cannot penalize them based on their weekend marijuana consumption. AB 2188 heralds a departure from the previous legality of such punitive measures.
However, AB 2188 does carve out exceptions to these protections, allowing employers to regulate cannabis use during working hours. Specifically, the bill stipulates that employees are not permitted to possess, be under the influence of or use marijuana while on the clock. The legislation also emphasizes that its provisions do not impinge upon an employer’s prerogative to maintain a drug- and alcohol-free workplace.
Certain sectors, such as construction and building trades, along with employees or applicants seeking federal jobs requiring clearance from the Defense Department, may still face employment denial or disciplinary actions for marijuana use outside of work.
Anticipating the implementation of these restrictions, employers are urged to review and adjust their antidiscrimination and drug-use policies. Those covered by the legislation intending to conduct cannabis tests must ensure that their testing programs exclusively target psychoactive cannabis components. Employers are further encouraged to stay abreast of any pertinent updates to their policies, particularly concerning criminal background checks.
The implementation of this law in California brings the Sunshine State at par with jurisdictions where firms such as Canopy Growth Corp. (NASDAQ: CGC) (TSX: WEED) operate and adults are protected from job losses or other sanctions resulting from using marijuana while off-site or off-duty.
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