A law barring California businesses from penalizing or firing employees who use marijuana on their own time could present challenges for employers while workers are on the clock, a Sacramento attorney said.
Assembly Bill 2188, set to take effect Jan. 1, 2024, prohibits employers from discriminating against workers who are found to have traces of cannabis in their hair, blood, urine or other bodily fluids by a test that detects only whether an employee has consumed cannabis in recent weeks.
“You have to be able to test for current impairment — THC. And that’s still being fine-tuned by the pharmaceutical companies,” said Shelline Bennett, a labor and employment attorney with Liebert Cassidy Whitmore. “If someone is impaired during work, the only legal evidence we can currently use is a witness.”
And what if an employee is on a remote or hybrid work schedule?
“If someone is working from home it would be a lot easier for them to potentially smoke marijuana,” Bennett said. “This isn’t on the radar for most employers yet, partly because of the delay in implementation.”
Authored by former Assemblyman Bill Quirk, D-Hayward, AB 2188 was signed into law by Gov. Gavin Newsom on Sept. 18 as a workplace anti-discrimination statute that amends the Fair Employment and Housing Act to protect off-duty, off-site cannabis use.
The bill promotes marijuana use to a protected class, on par with race, color, religion, sex, national origin or disability.
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