California recently enacted Assembly Bill 2188 (AB-2188). This bill limits an employer’s ability to discriminate against an employee or potential employee because of cannabis (or marijuana) use off the job and away from the workplace. This Memo provides an overview of the bill, as well as its impact to employers and employees.
Cannabis (sometimes referred to as marijuana or THC) is currently legalized for recreational use in California. THC is the chemical compound in cannabis that can cause psychoactive effects and indicate impairment (commonly referred to as being “high”). Once the THC is metabolized, it remains in the body as a non-psychoactive metabolite. These non-psychoactive metabolites can remain in the body for an extended period of time.
Current Testing Methods
When employees or potential employees are tested for drugs – for instance, a pre-employment test or a random test – the most common form of testing to obtain a urine sample from the donor. The sample is shipped to a laboratory for analysis. The lab is looking for the THC metabolite, and if it is detected, then a confirmation test is performed to validate the initial analysis. The metabolite detected is the non-psychoactive metabolite.
The new Bill, AB-2188, addresses how an employer can test employees or potential employees for cannabis. It applies only to marijuana and not to any other drugs (e.g. cocaine). The bill officially states that:
“It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(1) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.
(2) An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
In layperson’s terms, the new bill does not allow employers to penalize a person (such as terminating or not hiring a person) because the person tested positive for marijuana AND the test method utilized analyzed a person’s body fluid for the non-psychoactive metabolite. Employers cannot use a marijuana positive urine test to terminate an employee or not hire a potential employee.
Employers can still require marijuana drug testing. However, the test utilized must specifically test for the psychoactive element of cannabis, not the metabolite. This is referred to as testing for the “parent drug”. Today, the most common way to test for the parent drug is to utilize oral fluid testing method. The oral fluid sample can be sent to a lab for analysis, and the lab will specifically be testing the sample for the parent drug.
To comply with this new law, employers that utilize urine testing will need to switch from urine testing to oral fluid testing.
Other Important Details of AB-2188
This new law does not apply to all employees. It does not apply to employees that serve in DOT-regulated positions, such as drivers of commercial vehicles (CDL holders). The law will also not apply to certain non-DOT employees. We are currently awaiting additional guidance and regulations on the specific roles where this new law will not apply. We expect that guidance to come before the effective date.
The new law is effective as of January 1, 2024. There is no required change at this time to company policies and procedures.
AB-2188 addresses an employee or potential employee’s right to use marijuana off the job and away from the workplace. With recreational marijuana use legal in California, this bill is designed to protect that right for employees, subject to that employee’s role with their employer.
In another sense, this is the next step towards treating marijuana more like alcohol, where use is permitted but impairment is not. Testing for the psychoactive element of THC is more closely related to the attempt to determine impairment.
Employers will need to ensure that the testing methods used for marijuana testing are in compliance with this law, when it goes into effect. Employers will also need to make sure that roles are clearly defined, so that it will be clear whether or not this new law applies to a particular employee.
Employers will also need to update their drug and alcohol testing policies to comply with this new law. Employers will need to update any educational materials provided to employees regarding drug and alcohol in the workplace.
Employers will need to monitor regulations for additional updates and guidance, particularly related to industries or positions where the new bill would not apply to those employees.
CDT can educate employers and assist with policy review and revision, if necessary. We will also continue to update our clients on any additional guidance related to AB-2281. As the effective date nears, and with any additional guidance, we can assist you and update policies and procedures to prepare for the implementation. We already offer the type of oral fluid testing that is compliant with this law. We can make sure you have access to this testing.