Off-duty, Off-site Cannabis Use (AB 2188 and SB 700)

AB 2188 & SB 700: Navigating Cannabis-Related Employment Laws

With cannabis use becoming an increasingly pertinent topic in employment law, California has recently passed two notable bills—AB 2188 and SB 700—addressing various aspects of cannabis use in relation to employment practices.

Key Takeaways from AB 2188

1. Implementation Date: While AB 2188 was passed in 2022, its enactment is scheduled for January 1, 2024.

2. Protected Class Inclusion: This bill introduces off-duty cannabis use as a new protected category under the California Fair Employment and Housing Act (FEHA).

3. Testing Restrictions: With the aim of ensuring fairness and accuracy, employers will be restricted in their choice of drug tests for cannabis. Specifically, hair tests—which can detect cannabis use from weeks prior—are no longer permissible. The focus now is on tests that identify psychoactive cannabis metabolites, which provide a more immediate window into potential impairment.

4. Exemptions: It's crucial to note that AB 2188 exempts certain categories of employers, including federal contractors and businesses operating within the construction and building sectors.

Insights into SB 700

1. Restrictions on Inquiries: SB 700 emphasizes privacy by disallowing employers from probing into a job applicant's history of cannabis use. This extends to both verbal queries during interviews and written questions on job applications.

2. Criminal History Limitations: Employers cannot utilize information about an applicant's cannabis use extracted from their criminal history. The only exception to this rule is if the Fair Chance Act specifically grants an employer the right to consider such information.

3. Exemptions: Similarly to AB 2188, SB 700 offers a carve-out for federal contractors.

Employers Guardian's Guidance on California AB-2188: Cannabis Use and Employment Discrimination

California's AB-2188 introduces a significant change in employment law by prohibiting discrimination against employees based on cannabis use outside of the workplace. This legislation acknowledges that the presence of Non-psychoactive cannabis metabolites in the body, often detected through traditional urine drug tests, does not equate to impairment. These metabolites simply indicate past cannabis use. Meanwhile, oral swab tests can detect the presence of THC (Tetrahydrocannabinol), the psychoactive component in cannabis, which may suggest impairment but only within a 2–3-day window.

• Exemptions: AB-2188 does not apply to certain groups, including:

  • Employees in the building and construction trades.

  • Positions requiring a federal government background check or security clearance from the US Department of Defense.

  • Employees are subject to federally mandated controlled substance testing.

• Employers Guardian Action Items:

  • Updating employee handbooks to align with AB-2188.

  • Removed marijuana from non-DOT testing panels for California businesses, except in certain construction accounts, unless specifically requested.

These actions reflect our commitment to providing up-to-date, compliant, and efficient workforce management solutions. Employers Guardian is dedicated to ensuring these transitions are smooth and beneficial for your business and your employees.

• Client Action Items:

  • Stay informed and prepared by engaging with Employers Guardian's EGRisk and EGHROD teams for any questions.

For comprehensive support and advice on AB-2188, contact Employers Guardian at risk@employersguardian.com.

With Employers Guardian, you gain more than just compliance support; you access a partnership that prioritizes your business's growth and your employees' well-being. Together, let's navigate these changes confidently and continue to thrive.