If you're an employer in California, you may have heard of AB 2188. It’s a new law that prohibits employers from discriminating against employees for any marijuana use away from the workplace.
That means a positive drug test for marijuana is no longer grounds for termination—or, in other words, you can’t fire someone for using cannabis outside of work as of January 1, 2024 (when the new law takes effect). Employees also have the right to appeal wrongful terminations.
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But what exactly is Assembly Bill 2188? What does it mean for employers? And does it mean a team member can come to work under the influence of marijuana—aka while they’re “high”? We’ll cover all that and more, so let’s dive in!
Did AB 2188 Pass?
Yes. AB 2188 was passed by the California Legislature on Aug. 30, 2022 and signed into law by Governor Gavin Newsom on Sept. 18, 2022. It will take effect on January 1, 2024.
AB 2188 amends the California Fair Employment and Housing Act (FEHA) by forbidding employers from taking any adverse employment action against California employees for off-duty use of cannabis.
In other words, you can no longer lay off, demote, or not promote an employee for:
- Using medical or recreational marijuana when away from work
- Failing an employer-required drug screening test that looks for non-psychoactive cannabis metabolites in their bodily fluids or hair (more on this later)
Can You Fire Someone for Being High at Work?
Yes, AB 2188 still allows you to fire or suspend an employee for being impaired or using marijuana at work.
When talking about impairment, we’re referring to marijuana products with tetrahydrocannabinol (THC)—not cannabidiol (CBD).
THC and CBD are two of the many cannabinoids (products) found in the cannabis plant. THC is what causes intoxication and euphoria (being “high”). And it stays in the body long after the effects of marijuana have worn off.
On the other hand, CBD is one of the plant’s non-psychoactive cannabis metabolites; as such, CBD doesn't intoxicate.
Can California Employers Still Drug Test?
Yes, you can test for marijuana impairment. But the new California law doesn't allow you to test for CBD or non-psychoactive cannabis metabolites.
A mouthful … But “non-psychoactive” just means it doesn’t make you high.
The law still lets you do tests based on THC since it's the product that causes psychoactive effects and impairment.
California state law also regulates workplace drug testing for employers. And random tests are only permitted in specific safety-sensitive industries, such as transportation, building, and construction.
The drug testing laws allow you to test employees only when:
- There are reasonable grounds that justify a drug test
- There's a clear physical danger to the worker, other employees, or the general public
But even with a positive marijuana test result, it can be hard to figure out whether an employee is impaired and when they used weed.
Why?
Testing for marijuana only shows evidence of use—not whether they’re currently intoxicated or under the influence of THC. And the test can detect cannabis in a person's system days, weeks, or months after use—so a positive test certainly isn’t evidence of current intoxication.
How long this detection window lasts depends on how much the person uses marijuana and the sample type:
- Blood: 2 hours–30 days
- Saliva: 1–3 days
- Urine: 3–30 days
- Hair: Up to 90 days
So unless the employee shows obvious signs—like dry mouth, bloodshot eyes, and odor—you may not be able to determine if they used marijuana at work. And according to AB 2188, you can’t discipline or fire them unless you’re absolutely sure they were using weed during working hours.
How Can You Test for Active Marijuana Metabolites or Impairment?
Current drug tests typically measure THC and its metabolites (byproducts)—which, again, can stay in the system for months after use. So, testing for marijuana doesn’t show current intoxication.
For that reason, contemporary tests may not help you know if an employee tested positive due to past cannabis use (they used marijuana before reporting to work) or if they used marijuana at the workplace. For example, urine tests can detect THC in someone's urine between three and 30 days after use, depending on how frequently they consume. Since the usual shift lasts 8 to 9 hours, these tests won’t help you much.
So what does that mean for you? Your best move is to ensure your employees don’t use cannabis at work—or show up to work impaired. Create policies that enforce a drug-free workplace.
For example, you can:
- Train managers on how to look for evidence of a person’s use of marijuana at work—like bloodshot eyes, lack of attention, and slurred speech. You should also train leaders on how to handle confrontations with workers suspected of marijuana use.
- Encourage team members to report any employees showing signs of marijuana intoxication.
- Use an impairment test to compare past and current performance to determine if an employee is intoxicated. For example, employees who are high on marijuana may struggle to concentrate on their work. They might appear unproductive and miss deadlines.
- Document any signs of workplace drug use when they occur. This is your best protection if you make an employment decision based on an employee’s marijuana use on the job, since drug testing is no longer a reliable or legal test in this case.
- Educate employees about the health and safety risks that workplace cannabis use may pose to all staff.
- Use an employee assistance program (EAP) to offer counseling and other wellness resources to workers who want to quit drugs.
- Inform prospective employees about your company's drug-free workplace policy during interviews. The sooner they understand the policy, the better for both parties.
Can California Employers Discriminate Against Medical Marijuana?
Recreational and medical use of marijuana is legal under California state law. However, in Ross v. RagingWire Telecommunications, the California Supreme Court ruled that the state doesn't require accommodations for employees who use medical marijuana.
As a result, many California employers have implemented drug-free workplace policies that may discipline or terminate employees who test positive for cannabis. But AB 2188 will end this when it comes into effect on Jan. 1, 2024 (as long as marijuana is used off the job!).
Until then, you can still take disciplinary action against California employees for off-duty marijuana use—and that includes medical marijuana.
What Are the Exceptions to the Rule on Off-Duty Use of Marijuana?
AB 2188 isn’t without exceptions. It doesn’t cover:
Employees Requiring Federal Security Clearance
AB 2188 won't apply to employees hired for positions that require a security clearance or a background investigation from the federal government.
That's because marijuana use is still illegal under federal law. Under the Controlled Substance Act, cannabis is still considered a Schedule I controlled substance.
Employees of Businesses Receiving Federal Contracts or Funding
Businesses that get federal contracts or funding have to comply with the Drug-Free Workplace Act. This act requires grantees and contractors to guarantee that they'll provide a drug-free workplace before receiving a grant or contract from a federal agency.
Employees in Building and Construction
AB 2188 doesn't apply to the building and construction trades for safety reasons.
The Occupational Safety and Health Act (OSHA) requires contractors to maintain a safe work environment. And since construction sites usually have hazards that can cause personal injury, marijuana use can significantly increase the risk to people and property. So, AB 2188 doesn't protect workers in the building and construction industry who use cannabis outside of work.
Which Other States Have Similar Protections to AB 2188?
New York, Connecticut, New Jersey, Montana, and Rhode Island have passed laws similar to AB 2188 that protect employees’ off-duty marijuana use.
Time To Implement the New California Marijuana Law
Now that you know all about the new employment law protecting California employees’ off-duty marijuana use, what’s left to do? Make sure you implement the following to comply with AB 2188:
- Seek legal advice from a law firm to help you evaluate workplace policies on marijuana use. That way, you can ensure you administer pre-employment drug tests—as well as tests for current employees—properly.
- Educate your employees on any policy changes.
- Ensure any drug screenings look for psychoactive cannabis metabolites.
Failing to comply with AB 2188 may subject you to retaliation or discrimination claims. And you may have to pay lost or future wages, attorney fees, or statutory penalties. So, the sooner you come up with an updated marijuana policy, the better.
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