California Tightens Restrictions on Employment Testing for Marijuana

On September 18, 2022, Governor Gavin Newsom signed into law AB 2188, which expands the protections of the California Fair Employment and Housing Act to include a person’s off duty use of cannabis. The bill becomes effective January 1, 2024, so employers have a full year to review their current practices and update their policies if and where necessary.

The new law will make it unlawful for an employer to discriminate against or penalize a person in hiring, termination, or any term or condition of employment if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.

The law doesn’t prohibit an employer’s right to test applicants and employees for cannabis, but it draws a distinction between testing that indicates impairment (positive for THC) and testing that shows only that the person has used cannabis in the past few days or weeks or has used CBD or CBC (positive for nonpsychoactive cannabis metabolites). Testing for or discrimination against those who test positive for nonpsychoactive cannabis metabolites is prohibited unless the individual meets one of several exemptions as noted below.

The new law does not apply to employees in the building and construction trades, nor does it apply to applicants or employees hired for positions that require a federal government background or clearance or those required by state or federal law to be tested for controlled substances with a specified panel as a condition of employment, licensure, federal contract, or federal funding.

Frasco Profiles is actively reviewing all customer drug testing panels and will be working with you over the next few months to ensure you will be ready well in advance of the January 2024 enforcement date.

To read the full Bill, click here.

Frasco® Profiles is NOT a law firm. The information contained in this post is for general informational purposes only. We are not providing legal advice and strongly recommend consulting with your legal resources before taking any action.

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