Although a number of states, including California, have legalized the recreational use of marijuana, many vestiges of prohibition remain. As previously reported in Law Commentary, a new California law aims to rectify at least one: employers firing employees for lighting up on their days off. Currently, employers can still ask existing and prospective employees about their marijuana use, even though cannabis is legal in the state. Starting in 2024, California smokers can finally catch a break.

On September 18, Governor Newsom signed into law Assembly Bill 2188. AB 2188 amends the Fair Employment and Housing Act, effective January 2024. The amended section protects California workers from discriminatory treatment based on off-duty cannabis use or drug test failure. The bill prohibits discrimination against a person “in hiring, termination, or any term or condition of employment, or a person,” based on that “person’s use of cannabis off the job and away from the workplace.”

Specifically, employers are prohibited from discriminating against workers based on their off-duty cannabis use or based on the presence of latent, “nonpsychoactive cannabis metabolite” in a worker’s hair, blood, urine, or other bodily fluids” detected by an “employer-required drug screening test.” As explained by the legislature, nonpsychoactive cannabis metabolites are left behind in a person's body after THC is metabolized. “These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.”

The bill includes certain exceptions. Employers may still discriminate based on the results of “scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” To the extent a prospective employee is found to be actively impaired by cannabis, for example, employers are still free to render an unfavorable hiring decision regarding that employee. The law exempts certain professions wholesale, including the building and construction trades as well as positions that require a federal background investigation or security clearance. The law also excludes any drug testing required by existing federal or state law.

The legislature’s stated purpose in passing the law is to ensure that employment-related drug tests actually test what matters: whether an employee is actively impaired on the job. Whether a current or prospective employee smokes at home, off the job, is not the employer’s business unless it otherwise interferes with their performance.

New Jersey recently passed a similar law targeting outdated cannabis testing methods. Under the new law, employers can test for cannabis only when they have a specific reason to believe an employee is or may have been impaired at work. Employers must use appropriate tests that do more than determine whether an employee has smoked at home in the past month.

Workers in cannabis-legal states around the country are clamoring for laws like those in California and New Jersey. How well these early efforts at employee protections work remains to be seen.