Starting from January 1, 2024, California employers will be prohibited from discriminating against employees for using marijuana outside of work hours.
Driving the news: Assembly Bill 2188 requires employers to change their testing methods for marijuana use among employees and use tests that indicate current impairment instead of past usage. However, exceptions are made for workers in the construction trades.
- The law allows for the use of advanced technology that can test for the psychoactive component of cannabis, THC, to determine impairment, as older tests detect non-psychoactive metabolites that can stay in a person’s system for weeks, potentially leading to false positives.
- The bill was signed into law by Governor Gavin Newsom in September 2022 but had a provision delaying its effect until January 1, 2024.
- The bill was heavily supported by California NORML, a marijuana advocacy group, which argues that tests for marijuana metabolites have not been proven effective in improving workplace safety or productivity.
What they’re saying: The California Chamber of Commerce opposed the bill, expressing concerns that employers would face liability when taking disciplinary actions against employees who use marijuana.
- While the law protects the rights of most workers to use cannabis outside of work, it does not impact employers’ ability to maintain a drug-free workplace.
- Attorneys suggest that employers who disapprove of employees’ marijuana use outside of work may resort to alternative reasons to terminate employees, potentially leading to legal arguments over pretextual reasons.
- The law is expected to drive improvements in testing methods for impairment and psychoactive metabolites in cannabis, and employers may focus on training supervisors for impairment testing.
