Part I – Anticipated 2023 Employment Laws: CA AB 2188 Seeks to Protect Off-Duty Cannabis Use for California Employees

ab-2188With a recent amendment of California Assembly Bill 2188 (AB 2188), California employers could soon see restrictions on hiring and other employment decisions based on off-duty cannabis use. On August 30, 2022, the bill passed the California legislature and proceeded to Governor Gavin Newsom’s desk. If signed, the bill will go into effect on January 1, 2024, and make it unlawful for employers to hire, fire, or set employment conditions based on off-the-clock cannabis use. 

AB 2188, which amends the California Fair Employment and Housing Act (FEHA), will specifically restrict employers from discriminating against employees based on mandatory drug screening tests. More specifically, drug screening tests detect the presence of “non psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.” Although medical and recreational cannabis uses have been legal in California since 1996 and 2016, AB 2188 would be the first state law to offer workplace protections for both classes of marijuana users.

It’s important to note that employers will still retain the right to prohibit cannabis use at work, with the bill stating it would not allow employees to “possess, to be impaired by, or to use cannabis on the job.” 

 

Potential Employee Impact

If signed, AB 2188 would give employees who are subject to regular drug screenings more freedom to use cannabis outside of the office. In a way, it draws a firmer line between the professional and the personal, rather than allowing company protocols to inform off-duty lifestyle decisions. 

However, AB 2188 doesn’t prohibit employers from drug testing applicants for employment. In a recent ABC7 feature, Angela Reddock-Wright shared her insights: “Traditionally, employers drug test applicants for employment, and that’s still allowed. This law doesn’t prevent employers from drug testing applicants for employment.”

It’s also important to note that workers in critical roles would be exempt from AB 2188, according to Angela. Exemptions for SB 2188 would extend to “employees who work in a ‘safety’ position, such as in the building and trades industry or law enforcement, a position that requires employees to have their full senses about them.”

Most notably, employers will be barred from hiring, firing, or discriminating against workers who’re found to have traces of THC in their system. If active antibodies are found, and an employee is suspected to be impaired on the job, employers will be able to take action. The bill does limit employers from taking action based on recreational, off-duty cannabis use that doesn’t impair performance or safety. 

 

Potential Employer Impact

The proposed amendments to AB 2188 may not sit well with many employers, most notably due to restrictions on drug screening tests. Implementing drug tests that don’t measure “non psychoactive” chemicals could bring unique challenges and questions concerning employers’ authority in implementing drug-related policies and disciplining employees who use cannabis on the job. For this reason, employers should review and update their workplace drug policies and screening protocols if approved by the governor. 

Visit Angela’s recent ABC7 feature for her insights on AB2188, and be sure to follow Reddock-Wright on Facebook and Instagram @iamangelareddockwright, LinkedIn at Linkedin.com/in/angelareddock, and tune in to her weekly radio show, KBLA Talk 1580’s Legal Lens with Angela Reddock-Wright each Saturday and Sunday at 11 am PST, or catch past episodes on Anchor.fm/Spotify.   You can learn more about the radio show here – https://angelareddock-wright.com/radio-show/.

Also learn more about her book – The Workplace Transformed: 7 Crucial Lessons from the Global Pandemic – here – https://angelareddock-wright.com/book/.

For media inquiries for Angela, please reach out to monty@kwsmdigital.com.

 

Experienced Employment Law Attorney, Mediator, Arbitrator, Investigator, Legal and Media Commentator 

Twice-named a U.S. News Best Lawyer in America for employment and labor law, Angela Reddock-Wright is an employment and labor law attorney, mediator, arbitrator, and certified workplace and Title IX investigator (AWI-CH) in Los Angeles, CA. Known as the “Workplace Guru,” Angela is an influencer and leading authority on employment, workplace/HR, Title IX, hazing, and bullying issues. Furthermore, she’s been named a “Top 50 Woman Attorney” in California by Super Lawyers, a “Top California Employment Lawyer” by the Daily Journal and one of Los Angeles’ “Most Influential Minority and Women Attorneys” by the Los Angeles Business Journal.

Angela is a regular legal and media commentator and analyst and has appeared on such media outlets as Good Morning America, Entertainment Tonight, Law and Crime with Brian Ross, Court TV, CNN, NewsNation, ABC News, CBS News, Fox 11 News, KTLA-5, the Black News Channel, Fox Soul – The Black Report, NPR, KPCC, Airtalk-89.3, KJLH Front Page with Dominique DiPrima, the New York Times, the Washington Post, the LA Times, Forbes.com, Yahoo! Entertainment, People Magazine, Essence Magazine, the Los Angeles Sentinel, LA Focus, Daily Journal, Our Weekly and the Wave Newspapers.

Angela is a member of the panel of distinguished mediators and arbitrators with Judicate West, a California dispute resolution company. She also owns her own dispute resolution law firm, the Reddock Law Group of Los Angeles, specializing in the mediation, arbitration, and investigation of employment discrimination, harassment, retaliation, and other workplace claims, along with Title IX, sexual harassment, assault, and misconduct conduct cases, along with hazing and bullying cases in K-12 schools, colleges and universities, fraternities and sororities; fire, police and other public safety agencies and departments; and other private and public sector workplaces.

For more information regarding resources for employers, businesses, and employees during this time, connect with Angela on LinkedIn for new updates, or contact her here. You may also follow her on Instagram.

This communication is not legal advice. It is educational only. For legal advice, consult with an experienced employment law attorney in your state or city.

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