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Employers May Not Discriminate Based on After-Work Cannabis Use Starting in 2024

California has long been at the forefront of cannabis legalization. As of September 2022, the state has gone a step further by passing a new bill to protect cannabis users from discrimination by employers. Assembly Bill (AB) 2188 was signed into law by Governor Newsom and will begin protecting off-the-clock cannabis users from employment discrimination in 2024. 

This is an invaluable win for workers around the state. Recreational cannabis has been legalized in California since 2016 and for medical use since 1996. Adults over 21 may consume cannabis just like they may drink alcohol. However, employers have been permitted to require drug tests and discriminate against workers who were found to have cannabis metabolites in their blood.

AB 2188 will change that once it goes into effect. Keep reading to learn more about this bill, when it will kick in, and your current rights regarding workplace drug testing.

What You Need to Know About Assembly Bill 2188

Assembly Bill 2188 will prevent employers from penalizing or discriminating against workers who consume cannabis or THC products when off the clock and not at work. Specifically, AB 2188 will not let employers make employment decisions based on the presence or absence of non-psychoactive cannabis metabolites in a worker’s hair or urine. The only exceptions are the construction and building industries, employers that receive federal funding, and organizations that are required to maintain “drug-free” workplaces. The law will go into effect on January 1st, 2024.

The bill was considered necessary due to critical differences in how the body processes alcohol and cannabis. Alcohol intoxication is usually determined by blood alcohol concentration (BAC) with a breath or blood test. Your body can reduce your BAC by about 0.015 g/100ml per hour, so you can go from 0.09 g/100ml – above the legal limit to drive – back to 0 in just six hours. When the standard tests identify that someone has consumed alcohol, it’s usually because they are still actively intoxicated. That’s reasonable grounds for penalizing an employee since intoxication will likely impact their ability to do their job.

That’s not how cannabis testing works, though. Tests for cannabis use typically look for THC metabolites, not the psychoactive substance itself. These metabolites can remain in your body for weeks or months, long after you are no longer intoxicated. If you show positive for cannabis use in a hair or urine test, it doesn’t mean you’re high at work. However, before AB 2188, employers could still use these test results to discriminate against employees. The new bill will change this and allow workers to use legal recreational substances in their downtime without risking their jobs.

Current Employer Drug Testing Laws in California

Until 2024, employers may still use cannabis drug tests to make employment decisions. However, these tests must follow state testing guidelines and laws to be valid. 

California permits companies to require their employees to submit to drug tests as a condition of employment. However, these tests cannot be discriminatory. If an employer discovers details about an employee identifying them as part of a protected class, the employer cannot discriminate against them. For example, if a test reveals that a worker is pregnant or takes medications for a disability, the employer cannot alter how they treat that person.

In addition, California law has placed the following restrictions on employment drug testing:

  • Tests must be equitable. Companies must test universally if they want to check workers for substance use. They may not discriminate based on race, age, or other protected statuses.
  • Most workers must be given notice before a required test. California prohibits random drug tests except in high-responsibility or safety-based public positions. Unless you work as a law enforcement officer, bus driver, or similar critical role, your employer must give you notice about upcoming drug testing. 
  • Tests may not be unnecessarily intrusive. Various methods are used to test whether someone has consumed intoxicating substances. Companies must use the least invasive testing method that achieves a reliable result. For example, companies cannot require witnessed urine or blood tests if a breathalyzer test would work.

In addition to these restrictions, employers may not discriminate against workers who are being treated for substance abuse disorders. These disorders are classified as disabilities under California’s workplace discrimination laws, so employers must provide reasonable accommodations for workers receiving treatment for them. 

Certain alcohol or drug abuse treatments may result in drug tests delivering positive results. If an employer is aware that an employee is undergoing these treatments, taking adverse employment action based on the results is considered discriminatory. 

Examples of Unlawful Drug Tests

Companies can’t use the results of unlawful drug testing to make employment decisions. If you’ve been forced to take or penalized after an illegal test, you may be able to pursue compensation. Here are some common examples of potentially discriminatory or illegitimate testing practices that you may have experienced in your workplace:

  • Your employer requires you to take drug tests, but not coworkers in similar positions.
  • You’re forced to take unnecessarily invasive tests, and your employer doesn’t explain why they’re required.
  • Your employer requires random drug tests for low-responsibility roles.
  • Your employer used the results of a test to discriminate against you for a disability.

Exercise Your Rights Under California Employment Law

You have the right to use cannabis in your downtime in California. As of 2024, most employers won’t be permitted to penalize you for using this legal recreational substance. 

In the meantime, you may still have options if you’re facing unfair or discriminatory drug testing. At Le Clerc & Le Clerc LLP, we strongly advocate for our clients in workplace discrimination cases. If you believe you’ve been unfairly discriminated against through a drug test, we can help. Schedule your consultation today by calling 415-445-0900 or reaching out online to learn more. 

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