In a significant victory for employee rights, California’s Assembly Bill 2188 (AB 2188) has prohibited discrimination against employees based on their off-duty cannabis use. This landmark legislation marks a crucial step forward in safeguarding personal freedom and ensuring fair employment practices. It comes into effect on January 1, 2024.

Prior to AB 2188, employers in California held the authority to terminate or refuse employment based on an employee’s off-duty cannabis use, even if it had no bearing on their job performance or workplace safety. This discriminatory practice disproportionately affected individuals who used cannabis for medical purposes, creating unnecessary hurdles to employment and exacerbating their health challenges.

A Turning Point for Employee Rights

The passage of AB 2188 has effectively abolished this unjust practice and affirmed the right of employees to make personal choices about their cannabis use without fear of reprisal from their employers. This law extends protection to both recreational and medical cannabis users, recognizing that an individual’s off-duty cannabis use should not be a determining factor in their employment opportunities.

Navigating the Exceptions: Understanding AB 2188

AB 2188 also addresses the issue of drug testing for cannabis metabolites, which linger in the body long after the psychoactive effects of cannabis have subsided. Employers are now prohibited from using drug tests to detect non-psychoactive cannabis metabolites as a basis for employment decisions. This provision ensures that employees are not penalized for their off-duty choices that have no impact on their work performance.

There are a few exceptions to this rule. Employers are still permitted to prohibit employees from possessing, using, or being under the influence of cannabis on the job. Additionally, employers are not required to accommodate employees who are unable to perform their job duties due to their cannabis use. The new law also does not apply to employees in the building and construction trades or to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applicable to other agencies. The law also does not preempt state or federal laws requiring drug testing of applicants and employees, including law and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

Taking Action: Your Rights under AB 2188

If you believe that you have been discriminated against by your employer based on your off-duty cannabis use, you should take the following steps:

• Document the discrimination. Keep a record of any instances of discrimination, including dates, times, and witnesses.
• Talk to an employment attorney. An experienced employment attorney can help you understand your rights and options.
• File a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH is the state agency that enforces California’s anti-discrimination laws.

The enactment of AB 2188 is a testament to the growing recognition of cannabis as a legitimate medical treatment and the evolving attitudes toward personal cannabis use. This law aligns with the growing trend of state-level legalization and regulation of cannabis, ensuring that individuals are not subjected to discrimination based on their responsible cannabis use.AB 2188 is a significant step towards creating a more equitable and just workplace for all Californians. It protects the right of individuals to make personal choices about their cannabis use without jeopardizing their employment opportunities. This law is a victory for personal freedom, fair employment practices, and the recognition of cannabis as a legitimate medical treatment. Valerian Law, PC has an in-depth understanding of the laws designed to protect employee rights. Call us today to schedule a consultation, at 888.686.1918.