Details on California's New Workplace Cannabis Protections: What You Need to Know (AB 2188)

Details on California's New Workplace Cannabis Protections: What You Need to Know (AB 2188)
California employees are on the brink of securing safeguards against discrimination tied to their off-duty cannabis or marijuana use, thanks to an amendment to the Fair Employment and Housing Act (AB 2188). This amendment, greenlit by Governor Gavin Newsom on Sept. 18, 2022, will take effect on Jan. 1, 2024. The law expressly prohibits employers from refusing to hire, penalizing, or terminating individuals due to their use of cannabis products outside of work.

While California has been a pioneer in legalizing medical marijuana in 1996 and recreational use in 2016, AB 2188 marks the state's first explicit move to protect employees who use cannabis for either purpose in the workplace.

Key points of the amendment include:

Pre-employment Drug Testing: Employers cannot use drug test results indicating past marijuana use against job applicants. Testing will now focus on on-the-job impairment, not historic use. Furthermore, questioning potential employees about cannabis or marijuana use will be illegal.

Termination Based on Marijuana Usage: Employers can no longer penalize employees for off-duty medical or recreational marijuana use. For instance, a person using marijuana off-hours and showing up for work on Monday cannot be reprimanded for their weekend consumption.

Exceptions to Protections: While AB 2188 shields employees from discrimination, it permits employers to restrict marijuana use during work hours. The bill ensures that employees cannot possess, be impaired by, or use cannabis while on the clock. It's also clarified that the law doesn't alter employers' obligations to maintain drug-free workplaces.

Exceptions apply to certain sectors such as "building and construction trades" and applicants/employees in federal roles requiring U.S. Department of Defense clearance. In these cases, cannabis usage outside of work can still result in denied employment or disciplinary measures.

This amendment reflects a significant step toward safeguarding employee rights regarding off-duty cannabis usage.

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