Gavin Newsom has signed several measures to strengthen California’s cannabis laws, One of the ten cannabis related legislative bills he signed – AB 2188 – might be a significant problem for California employers.
The legislative analysis provided the backstory to this new law. In March 2021, when the State Personnel Board heard a case regarding the dismissal of a CalTrans maintenance worker for testing positive for THC upon his return to duty after a leave of absence. In upholding the Administrative Law Judge’s decision to revoke his termination, the Board ruled that a positive urinalysis test for marijuana, on its own, is not grounds for dismissal. In this case, there was no evidence that the worker was “under the influence of marijuana when he reported for duty or on standby for duty or that he possessed or used marijuana while on duty or on standby.”
The State Personnel Board also found that the test had limited probative value because it could only show marijuana use at some point in time prior to the worker reporting to work. Thus, a positive drug test for off the job and past use of marijuana cannot be a basis for proving employee impairment.
AB 2188 appears to be a solution for what happened in the CalTrans case.
Under the terms of this new law, after January 1, 2024, it will be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based the person’s use of cannabis off the job and away from the workplace.
Or to discriminate based upon 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.
The new law declares that after “tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks” And while “there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.”
And there are several exceptions to the application of this new law. It “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
But it does not specify what these allowable alternative screening tests might be. Employers will have slightly more than one year to discover this for themselves.
The law “does not apply to an employee in the building and construction trades.” And it “does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense…”
And finally the new law “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws 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.”
California NORML was the sponsor of the bill. Supporters of AB 2188 included the California Cannabis Industry Association, the California Employment Lawyers Association and other similar stakeholders. The legislation was opposed by a large number of employer related organizations including the California Chamber of Commerce, the National Federation of Independent Business and many other groups.