Takeaways

• California exempts “the building and construction trades” from its bar on employer discrimination based on an employee’s off-duty use of marijuana.
• Construction employers may continue to use urine drug testing for marijuana and to take adverse employment actions against applicants and employees who test positive.
• Employers that operate in multiple states must review all applicable marijuana laws to ensure compliance.

Article

California prohibits employers from discriminating against employees because of off-duty use of marijuana, with some exemptions. One exemption is for “the building and construction trades.”

California’s AB 2188 greatly expanded the scope of the state’s existing marijuana laws in 2024 by prohibiting discrimination based on the off-duty use of marijuana. (See, generally, High Times Ahead for Employers in California.) This prohibition creates a dilemma for employers who conduct marijuana drug testing because marijuana stays in the human body much longer than alcohol and other drugs. AB 2188 added section 12954 to the Government Code.

AB 2188 does not permit employers to conduct marijuana drug testing unless:

1. An exemption applies; or
2. The drug test detects only the “psychoactive” components of marijuana, i.e., tests only for current impairment.

Although many employers remain uncertain about which tests can detect only the psychoactive components of marijuana (urine testing does not comply with the law), there are exemptions from the law worth...

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