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AB 2188's High Stakes: Navigating California's Changing Employment Laws for Marijuana Use

As we gear up for the upcoming year, HR Simplistic is dedicated to keeping you informed about the latest shifts in labor laws. Get ready to dive into the significant changes hitting California's employment landscape, specifically regarding marijuana use and its influence on work life, effective January 1, 2024. Our team of experts at HR Simplistic is primed to support businesses in navigating these alterations and ensuring adherence to the new regulations.

Gavel striking with American flag and marijuana leaf in background

Come January 1, 2024, California employers will encounter a fresh statute, AB 2188, that bars discrimination against employees engaged in marijuana use outside working hours. This legislation also puts constraints on employers from taking negative actions against applicants or employees when drug tests reveal nonpsychoactive cannabis metabolites, distinct from active THC levels or any evident impairment. While it maintains the option for employers to uphold drug-free workplaces, it demands a rethinking of their policy implementation.

AB 2188, Enacted to Govern Marijuana Use Starting January 1, 2024

In October 2022, Governor Gavin Newsom sealed the enactment of AB 2188, amending the California Fair Employment and Housing Act. The amendment prohibits California employers from discriminating against individuals in various employment aspects based on:

  1. Off-the-job and away-from-workplace cannabis usage. However, this doesn't prevent employers from using scientifically valid pre-employment drug screening methods that exclude nonpsychoactive cannabis metabolites.

  2. Results of employer-mandated drug screening tests indicating nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

Nonpsychoactive cannabis metabolites refer to residual THC retained in the body post-metabolism. Unlike THC, which induces psychoactive effects, the body stores THC for days or weeks after its effects dissipate.

Presently, common drug tests detect the mere presence of cannabis molecules, including THC, which might linger even after the user ceases to feel its effects or be impaired by marijuana. Hence, the California Legislature concluded that nonpsychoactive cannabis metabolites don't signify on-the-job impairment. Consequently, AB 2188 prohibits employers from disciplining employees or rejecting applicants solely based on drug test results revealing nonpsychoactive cannabis metabolites.

Exceptions to AB 2188 Application

AB 2188 excludes employees in building and construction trades from its purview. Likewise, it exempts applicants or employees in roles requiring federal government background checks or security clearances, potentially extending to aviation, railroads, trucking, or maritime sectors.

Additionally, the law doesn't apply to employees mandated by state or federal laws to undergo controlled substance testing for reasons like federal funding, licensing-related benefits, or engagement in federal contracts.

Implications of AB 2188 for California Employers

AB 2188 maintains that while employees cannot use, possess, or be impaired by marijuana at work, employers cannot penalize applicants or employees for off-duty and off-premises marijuana use through disciplinary action or refusal to hire.

Nonetheless, the law permits employers to terminate employees under the influence of marijuana during work hours. However, AB 2188 mandates a shift in how employers respond to drug test results. For instance, if an applicant's pre-employment drug test indicates nonpsychoactive cannabis metabolites, the employer cannot use this as grounds for rejection. Similarly, discovering such metabolites in an employee based on reasonable suspicion of impairment doesn't justify disciplinary action. Instead, adverse action is permissible only if the test detects actual impairment or active THC levels causing impairment.

How HR Simplistic Can Assist You

At HR Simplistic, our team of experts excels in aiding businesses in understanding and complying with ever-evolving labor laws. We provide tailored guidance and support in navigating the new marijuana discrimination law. Our services include:

  • Reviewing and updating your company policies to align with the new legislation.

  • Developing alternative impairment assessment methods for compliance and accurate employee evaluation.

  • Assisting with the implementation of workplace training programs to educate employees about the new law and its implications.

  • Providing ongoing support and guidance to address any concerns or questions regarding the impact of the law on your business.

Contact HR Simplistic today to ensure your business is equipped for the changes brought by California's new marijuana discrimination law. We're here to help you maintain a compliant and thriving workforce.

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