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Marijuana in the Workplace: Where Are We Now?

Back in September 2022, Governor Newsom signed into law Assembly Bill 2188 which amended California’s Fair Employment and Housing Act to make it unlawful for an employer to discriminate against an applicant or employee based on that person’s use of cannabis while off-the-job and away from work.

On January 1, 2024, this new law will take effect. It is codified in California’s Government Code, § 12954, and contains two major parts that California employers should be aware of.

Part One: Employers may not discriminate against applicants or employees for using cannabis off-the-job.[1]  This means that employers in California may not take “adverse actions” against an applicant or an employee for using cannabis on their own personal time, away from work, while they are off-the-job. Adverse actions against an applicant or an employee may include, but are not limited to: a refusal to hire or promote, disciplinary action, a demotion, a reduction of benefits, a termination, or anything else that negatively alters the terms and conditions of employment.

Part Two: Employers may not discriminate against applicants or employees based on an employer-required drug screening test which reveals non-psychoactive cannabis metabolites in the applicant’s or employee’s hair, blood, urine, or other bodily fluid.[2]  This means that employers in California may not take adverse actions against an applicant or employee because the drug test shows the presence of cannabis.  Currently, many drug tests simply test whether cannabis has been metabolized in the body. Metabolized non-psychoactive cannabis can remain in a person’s body for more than a month. Engaging in adverse action because of the use of cannabis days or weeks before the test will be a violation of the new law. Instead, employers will need to coordinate with their drug screening providers to only test for active THC (tetrahydrocannabinol). THC is a chemical compound that contains psychoactive properties that may impair an individual. A drug test for THC may reveal that the individual was actively impaired when the test was taken. Being actively impaired is still a basis to take adverse action against an applicant or employee.

It is important to note that California Employers may still enforce policies to ensure their workplace is drug-free. Under California’s Health & Safety Code § 11362.45(f), employers are allowed to promote and maintain an alcohol and drug-free workplace, which means that employers may prohibit employees from using cannabis or being impaired by cannabis, at work. Employers have a duty to maintain a safe working environment, and being impaired by cannabis may create a safety risk in the workplace. This may include instances where an employee uses cannabis away from work but arrives at work impaired by cannabis.

Some exemptions do exist, however. This new law does not apply to employees in building and construction trades; positions requiring a federal background investigation or clearance; and positions requiring testing for controlled substances as a condition for employment required by other federal or state law or for federal contracts.

What do employers do now? With four months to prepare for the new law, now is a good time to start reviewing policies and practices concerning drug and alcohol use, drug testing, anti-discrimination, anti-harassment, and terms and conditions of employment. Review the employee handbook to ensure those policies are compliant with the new law. Review any recruiting and hiring policies, paying extra close attention to drug testing, to ensure compliance. Most importantly, if a business requires any drug testing of applicants or employees, the business must work with its drug testing provider to ensure they have a lab solution that tests for the correct psychoactive compounds. Finally, alert employees to any policy changes and ensure they are knowledgeable of the employer’s position as it pertains to cannabis use at work.

Although this law applies to all California employers, this new law does not affect federal law. Cannabis remains illegal at the federal level, so be on the lookout for any further developments in both Federal and State law.


[1] Cal. Gov. Code, § 12954(a)(1)

[2] Cal. Gov. Code, § 12954(a)(2).