AB 2188 amends the California Fair Employment and Housing Act to prohibit employers from discriminating against employees and applicants based on off-duty use of cannabis while aiming to preserve employers’ ability to maintain a drug-free workplace.
Beginning on January 1, 2024, AB 2188 makes it unlawful for an employer to discriminate against or otherwise penalize an employee or applicant based upon the person’s use of cannabis off the job and away from the workplace, or based on an employer-required drug screening where the employee tested positive for non-psychoactive cannabis metabolites.
The bill does not prevent employers from acting on a scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites. The bill also does not give employees a right to possess, use, or be impaired by cannabis on the job, nor does it affect the employer’s right and obligation to maintain a drug- and alcohol-free workplace.
AB 2188 also specifically does not apply to employees in the building and construction trades, or to applicants and employees in positions that require a federal background investigation or security clearance. Moreover, to the extent AB 2188 conflicts with state or federal laws requiring drug testing for applicants or employees as a condition of employment, receiving federal funding or federal licensing-related benefits, entering into a federal contract, or laws regulating the manner of testing, those other laws take precedence.
These new provisions are subject to the same enforcement mechanisms through the California Civil Rights Department (formerly DFEH) as the FEHA’s other employment discrimination provisions.
(AB 2188 adds Section 12954 to the Government Code.)