California first legalized medical marijuana in 1996 and adult use or recreational marijuana in 2016. Since then, 39 states and the District of Columbia have legalized medical marijuana; 19 states have legalized adult marijuana use and other states, including Connecticut, Illinois, Montana, Nevada, New Jersey, New York and Rhode Island, have introduced laws that aim to protect employees who use marijuana off-premises and while off-duty. Until now, California law did not protect marijuana users from adverse employment action based on their marijuana use.
Recently signed California Assembly Bill 2188 (AB 2188) (effective January 1, 2024) prohibits employers from making employment decisions based on whether the employee uses cannabis while off-duty (i.e., not on employer property and not while working a shift). Specifically, employers are now prohibited from (1) refusing to hire an individual because of that person’s medical marijuana status, or (2) terminating an employee when the employer learns that the employee used cannabis on the employee’s day off. The law does not apply to (1) employees in the building and construction trades; (2) applicants and employees that are required to undergo a federal background investigation or security clearance; or (3) applicants and employees who must be drug tested as a condition of employment, receiving federal funding or licensing or entering into a federal contract.
So, can California employers still drug test? Yes, but with...
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