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September 2022: A New California Bill Will Protect Employees’ Ability to Use Marijuana Off the Clock

14 Sep


Update Applicable to: 
All employers in the state of California.

What happened?
On August 11, 2022, the California State Assembly voted to pass Assembly Bill 2188 (AB 2188), which, if passed by the Senate and signed into law by the governor, would grant protections to employees and job applicants who use marijuana.

What are the details? 
AB 2188 offers employees and applicants protection from being penalized by their employer for off-the-clock cannabis use. This bill would amend California’s Fair Employment and Housing Act (“DFEH”), which prohibits various forms of employment discrimination, by making it an unlawful employment practice for an employer to discriminate against a person in hiring, terminating, and any term or condition of employment based on cannabis use outside of work hours and away from the workplace. If an employer violated the bill, an employee could file a DFEH charge and a civil lawsuit with the same remedies as any other California discrimination claim. 

While this bill protects employees, it still allows employers to maintain drug-free work environments and does not permit “an employee to possess, to be impaired by, or to use, cannabis on the job.” So, while employees can use cannabis in their free time, they cannot bring the cannabis to the work site or arrive to work under the influence. 

According to the Department of Defense, the bill would not apply to employees in “building and construction trades,” nor would the prohibition apply to employees or applicants in positions requiring a federal government background check or security clearance. This bill would also not pre-empt any federal or state laws that require testing for controlled substances and would not apply to employment decisions based on “scientifically valid” pre-employment drug test methods “that do not screen for psychoactive cannabis metabolites.”  

The bill was passed by the State Assembly by a 42-23 margin and is currently sitting with the California Senate. If this bill is passed by the Senate and signed by Governor Newsom in its current form, it will allow an extra year for implementation and go into effect in January 2024.

For more information, please see the links below:

Assembly Bill 2188 (AB 2188)

Article 1 – Article 2

What do employers need to do?
Employers should review the links above and look for this bill to be signed into law. Vensure will continue to monitor this law and update once more news has been received.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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