California has a law in place regarding cannabis use by employees when they are off the clock. AB 2188, provides significant protections for workers who use cannabis after work hours and restricts employers from questioning previous users of the drug. Most employers are not allowed to take any negative actions, such as firing, refusing to hire or demoting an employee based on their personal cannabis usage as a result of this law. However, employers may continue to impose drug-free work expectations.
Pre-employment drug tests that detect psychotropic cannabis metabolites can still be conducted by employers, however, metabolites of cannabis that are not psychoactive are not covered by this exception. Tetrahydrocannabinol, or THC, is the psychoactive ingredient in cannabis that causes impairment. Once it has been metabolized, THC is retained as nonpsychoactive metabolites, which signify previous use rather than present impairment.
What does AB 2188 mean for employers?
Although AB 2188 broadly provides rights for cannabis use when off the job, it does not minimize an employer’s authority to impose a drug-free workplace environment. Employers may still pursue legal action against an employee who is actively intoxicated at work or who brings cannabis onto their employer’s property.
Additionally, there are some exceptions to the protections afforded by the law. For example:
- Employees who require federal background checks or security clearances are not exempt.
- Because of the particular safety considerations in the building and construction trades, employees in these fields are not exempt.
- AB 2188 does not replace current state and federal laws that demand controlled drug testing for specific job functions.
Because cannabis rules and regulations are constantly changing, seeking guidance from someone who understands and stays current with the laws and updates is encouraged should questions or concerns arise.