Q: I heard California recently enacted a law that prohibits testing employees for marijuana use. Does that change my company’s drug testing process?
A: On Sept. 19, Gov. Gavin Newsom signed into law AB 2188. The law amends the Fair Employment and Housing Act to make it unlawful for an employer to discriminate against someone in hiring, termination or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon:
1) the person’s use of cannabis off the job and away from the workplace; or
2) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
Although AB 2188 was just signed into law, it will not go into effect until Jan. 1, 2024. The law does not prohibit testing employees for the presence of cannabis. Rather, the law places restrictions on discriminating against employees for their off-the-job cannabis use or based on test results from certain types of drug screening tests that indicate nonpsychoactive cannabis metabolites. The law still allows an employer to prohibit employees from possessing, using or being impaired by cannabis on the job. Also, the law still allows an employer to maintain a drug- and alcohol-free workplace.
The law does not apply to applicants and employees in the building and construction trades and those in positions requiring a federal background investigation or clearance. In addition, the law...
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