California Governor Gavin Newsom recently signed Assembly Bill 2188 into law, with an effective date of January 1, 2024, which will prohibit employers from discriminating against employees based upon their use of cannabis off the job and away from the workplace.
The California legislature has found and declared that tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.
The results of most current drug testing for cannabis only show the presence of the nonpsychoactive cannabis metabolite and, therefore, do not indicate impairment on the job.
AB 2188 does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace. If an employer reasonably suspects that an employee may be impaired on the job, it may still require a drug test that does not rely on the presence of nonpsychoactive cannabis metabolites, such as one that specifically tests for the presence of THC.
The new law also specifically excludes certain applicants and employees from its provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance. Similarly, the law does not preempt other state or federal laws that require applicants or employees to be tested for controlled substances.
Employers should plan to review and revise their drug testing policies and procedures within the next year to ensure compliance by January 1, 2024.