As of January 1, 2024, significant changes in California’s labor laws will come into effect. One of those changes is AB 2188, a bill passed on August 25, 2022, which aims to create stronger protections for employees who use marijuana away from the workplace. The bill not only prohibits employers from discriminating against employees for lawful off-duty cannabis use but also restricts the use of metabolite tests to detect cannabis use. Employers open themselves up to discrimination claims if they commit adverse employment actions based on cannabis testing alone. AB 2188 also incorporates some exceptions, namely, situations that necessitate compliance with federal law or access to federal contracts/benefits and employers in the building and construction trades. The latter exemption is due to the extensive federal regulations governing this industry. This bill otherwise remains applicable to all other situations.
Cannabis Testing in the Workplace and Potential Litigation for Discrimination
AB 2188 aims to safeguard employees’ rights to utilize cannabis outside of work while maintaining an employer’s ability to uphold a drug- and alcohol-free workplace. Marijuana tests are common in public and private workplaces. Metabolite tests that use urine, blood, and hair have been used to detect cannabis use. However since these tests can detect THC for days or weeks after use, they are unreliable for showing impairment at the time of the test, thus inevitably including time frames where lawful use is permitted. The onus falls on employers to identify new, accurate, and legally compliant testing procedures to detect impairment while on duty.
If an employee shows signs of impairment while at work, an employer can take action against the employee. However, proving the employee’s impairment in court can be challenging. There is no test that is widely accepted to accurately indicate same-day impairment. Any metabolic testing can be questioned by the employee, who may claim the results are from off-duty use the day or night before. Thus, it is important for employers to train their staff to identify and report instances of impairment. This will support any adverse employment actions with a thorough factual analysis, highlighting why the employer has reasonable suspicion to believe that the employee was impaired while on duty and the steps taken to confirm or corroborate that suspicion.
Employers should establish clear guidelines for conducting investigations and any adverse action that follows to minimize their legal risk. Additionally, Employers should provide employees with the necessary information and clear guidelines for employees regarding cannabis use outside the workplace and on-the-job impairment. This will be essential to avoid misunderstandings and potential legal disputes while employers adapt to the changes brought by AB 2188.
Employers must analyze their current practices, revise policies, and adapt to changing laws to ensure compliance while also protecting the interests and rights of their employees. As the implementation date approaches, it’s in an employer’s best interest to seek help from an experienced employment attorney who can provide guidance on this matter. Contact the Employer Lawyers at Chauvel & Glatt based in San Mateo, California, and serving the Peninsula and surrounding communities, including San Francisco to San Jose, as well as clients throughout Los Angeles, San Diego and San Bernardino Counties.
The material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes. For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500.
