New California Legislation Shields Workers from Discrimination for Off-Duty Cannabis Use

by: Denmen Sterling

California is set to usher in a groundbreaking change with the implementation of an amendment to the state’s Fair Employment and Housing Act, known as AB 2188. Signed into law by Governor Gavin Newsom on September 18, 2022, this amendment, effective from January 1, 2024, offers unprecedented protections to employees who use cannabis outside of their work hours.

Despite being a pioneer in legalizing medical marijuana in 1996 and recreational marijuana in 2016, California had not previously provided specific workplace protections for cannabis users. AB 2188 fills this gap, marking a significant shift in the state’s approach to employee rights and cannabis use.

Under AB 2188, employers are prohibited from discriminating against job applicants based on past marijuana use, as revealed through drug testing. This aligns with the broader goal of employment-related drug testing, which is to identify impairment at the workplace, not to penalize long-term use.

The new law also makes it illegal for employers to inquire about a candidate’s cannabis use, signaling a major change in the hiring process.

Prior to AB 2188, employers could legally discipline employees for using medical or recreational marijuana during their personal time. With this new law, such actions will be deemed unlawful. For instance, if an employee partakes in recreational marijuana use over the weekend and is not impaired at work, they cannot be penalized for their off-duty activities.

Despite these protections, AB 2188 maintains strict rules against the use, possession, or impairment by cannabis in the workplace. The legislation also does not interfere with an employer’s right to maintain a drug-and-alcohol-free workplace.

The legislation does not extend to employees in the building and construction trades or to those seeking federal jobs requiring Department of Defense clearance, who may still face employment consequences for off-duty cannabis use.