New California Law Protects Employee Cannabis Use — Off the Clock

A new law signed by Gavin Newsom will go into effect on January 1, 2024 that protects California workers from discrimination if they use cannabis products off duty and away from the workplace. AB 2188 — the law — applies to most employers, except the building and construction industries, and workers who are subject to federal drug testing requirements.

AB 2188 encompasses every term and condition of employment, including hiring, discipline, promotions, compensation, and termination. The law does not allow workers to use, or be impaired by, cannabis on the job, but prohibits discrimination against workers who use the substances off duty. California was the first United States state to legalize medical use of cannabis in 1996. In 2016, the state legalized recreational use, as well.

What is a nonpsychoactive cannabis metabolite?

Employers, and the drug screening companies they use, will be increasing their scientific knowledge with AB 2188. The law prohibits employers from disciplining a current employee or refusing to hire an applicant based on a pre-employment drug screen that finds ‘nonpsychoactive cannabis metabolites’ in their system.

Tetrahydrocannabinol, or THC, is the traceable chemical in cannabis that indicates impairment. THC can cause psychoactive effects, or the feeling of being high. After use, the body metabolizes the chemical, and stores it as a nonpsychoactive cannabis metabolite. The presence of this metabolite does not indicate current impairment, only that the worker or applicant has recently consumed cannabis. The law posits the presence of these metabolites do not correlate to impairment on the job.

Employers will still be within their rights to prohibit the use of cannabis on the clock or on work premises. Companies that believe an employee is working under the influence of cannabis or is impaired may require an immediate drug test for verification. If the employee tests positive for current levels of THC, employers make take disciplinary action. However, if the tests are inconclusive or find only nonpsychoactive cannabis metabolites, no further action may occur.

If the employee tests positive for current levels of THC, employers make take disciplinary action. However, if the tests are inconclusive or find only nonpsychoactive cannabis metabolites, no further action may occur.

How will AB 2188 affect drug testing?

AB 2188 does not go into effect immediately. The law begins on January 1, 2024, providing employers and their drug screening vendors time to adjust testing protocols and adapt screening and employment practices accordingly.

The most common employment drug screening methods are urine tests. These detect THC and nonpsychoactive cannabis metabolites. They can detect the presence of current and past cannabis use within weeks of consumption. The new law will require employers to ignore markers that indicate nonpsychoactive cannabis metabolites, and focus only on the presence of THC in the sample.

Screening services in California may stop reporting nonpsychoactive cannabis metabolite detection, or companies may elect to have their screening service remove any positive result of the substance from tests provided. The delay in the law will allow businesses and service providers time to adapt to the new requirements and protocols.

There are a variety of other tests available to employers that they may use. Some are invasive, such as blood tests. Other methods, like follicle testing, may be costlier and require a lengthier wait time for results. Adapting the most common testing will provide businesses and workers the least invasive, most cost-effective screening protocols.

How does AB 2188 help employers outside California?

While no legalization requires a business to tolerate employees work impaired, this new law may provide a road map for updating policies and for testing.

California’s new law doesn’t impact businesses or workers outside the state, but it may provide guidance to employers around the country in states that have legalized cannabis for medicinal and/or recreational use.

While no legalization requires a business to tolerate employees work impaired, this new law may provide a road map for updating policies and for testing. Employers may want to change policy manuals and employee handbooks to reflect that they do not consider the presence of nonpsychoactive cannabis metabolites as part of the screening process, either for pre-employment or impairment testing.

Employers may look for vendors that exclude or delete testing for these metabolites, and assure employees and candidates are being tested for impairment alone — rather than past use of cannabis. For pre-employment screening, current markers for THC would certainly exclude hiring. For suspected impairment, the presence of THC could warrant disciplinary action.

Working while impaired

If managers or colleagues suspect a coworker is under the influence of drugs or alcohol on the job, they should take immediate action. An employer is within its rights to stop the employee from working and demand immediate screening, no matter what legislation is in effect in their area.

A best practice is to document the entire process: employers should start with details on the time and reason they suspect the impairment. Include testimony or complaints, as well as video or audio recordings, if appropriate, to verify the reason a test is being required or  implemented. If THC or other substances are present, further action is necessary.

This new law reminds employers that, as with all recreational activities, what an employee does off the clock should have no impact on their career if it has no impact on their work. As more states legalize the use of cannabis, more business leaders will need to assure an employee’s private life remains private.