Much has already been made about California’s AB 2188, which prohibits discrimination against employees for the use of cannabis off the job and away from the workplace. The bill amends the state’s Fair Employment and Housing Act (“FEHA”), (controversially) elevating it to the same EEO status as gender, race, religion, sexual orientation, and other categories of (arguably) greater social significance.
The law contains various exceptions such as construction trade workers, employees subject to testing under other state or federal regulations (such as DOT-regulated truck drivers), and workplaces with mandated Drug Free Workplace programs. It also applies only to employers with five or more employees otherwise covered by the FEHA.
It will create difficult issues for employers, who may test for the presence of cannabis but may not rely on “nonpsychoactive cannabis metabolites.” Employers will need to use potentially more invasive “alternative tests” such as “impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.”
It is an open question whether the law will ever take effect. First, the law is not effective until January 1, 2024, leaving plenty of time for courts and the legislature to consider its validity.
Second, though mirroring state-law protection of lawful off-duty off-premises conduct, it violates state-court precedent protecting employers from requirements to accommodate cannabis. This issue was addressed more than a decade ago, when cannabis proponents argued that medical use of marijuana was protected by existing FEHA requirements. Faced with this question, the state Supreme Court held that neither the FEHA nor the state’s medical marijuana laws require employers to accommodate cannabis use because, regardless of its state-law status, the substance is unlawful under federal law. The case, Ross v. RagingWire Telecommunications, Inc., can be viewed online here.
Cannabis remains unlawful under federal law, though the bill’s proponents likely believe that more progressive administrations will argue against its preemption. This creates an interesting issue for the courts, who may need to interpret the interplay between state and federal law without clear guidance.
AB 2188 can be viewed on the California Legislative Information site by clicking here.