Wednesday, February 1, 2023


As broadly anticipated, Governor Newsom signed AB 2188 into legislation extending FEHA safety to staff who use hashish whereas off responsibility and off-premise.  This increased safety for workers who use hashish will probably be efficient on January 1, 2024.  Employers have ample time to roll out compliant insurance policies and testing procedures previous to the efficient date.

Utilizing Pot Whereas Off-Responsibility and Outdoors of Work Will likely be Protected Underneath the FEHA

Underneath current legislation, the California Truthful Employment and Housing Act (“FEHA”), safeguards the best and alternative for all individuals to pursue, acquire and maintain employment with out discrimination or harassment on account of a number of protected classes.  Presently, the FEHA protects potential and current staff from discrimination and harassment on the idea of race, faith, nationwide origin, bodily and psychological incapacity, intercourse, gender and age, amongst different protected classes.  Generally Hashish use is said to incapacity, however the strains of whether or not and when that must be accommodated have been blurry

The California legislature notes that the tetrahydrocannabinol (THC) “is the chemical compound in hashish that may point out impairment and trigger psychoactive results.”  After THC is metabolized, it’s saved within the physique as nonpsychoactive metabolites, which may stay detectable within the physique for a number of weeks.  The presence of the nonpsychoactive metabolites doesn’t point out that an individual is impaired.  The legislature additional famous that the “intent of drug exams is to determine staff who could also be impaired” and that superior science has created various exams just for the presence of THC. 

With that background in thoughts, AB 2188 prohibits employers from discriminating in opposition to candidates or staff on the idea of drug exams displaying the presence of the nonpsychoactive hashish metabolites or the individual’s use of hashish off the job and away from the office.

Notably, employers can nonetheless preserve a drug and alcohol-free office.  Underneath the brand new legislation, staff shall not possess hashish whereas on the office or be impaired by or use hashish whereas on the job.  Employers should check for managed substances as a situation of employment.

AB 2188 doesn’t apply to staff within the constructing and building trades and people requiring a federal background investigation or clearance.

Key Takeamethods

Entering into the weed(s) of what employers ought to do to organize themselves for the brand new laws, employers who use pre-employment drug exams and screening might want to monitor developments and the provision of compliant hashish exams.  Starting in 2024, any disciplinary actions taken in opposition to an worker for the presence of the nonpsychoactive hashish metabolites can result in claims or litigation. 

To place it bluntly, many industries could choose to forego pre-employment drug exams.  In some non-safety delicate workplaces (maybe retail, customer support, or many forms of distant work), an worker with some leftover nonpsychoactive metabolites of their system may not be a giant deal.    

Lastly, employers ought to assessment present drug and alcohol testing and use insurance policies and practices upfront of January 1, 2024 to make sure they’re compliant with AB 2188. 

Go away it to California to blaze ahead with a brand new legislation that challenges the established order for weed at work.

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