Governor Newsom signed AB 2188, which amends the state’s Fair Employment and Housing Act (“FEHA”) to prohibit discrimination based on off-the-job cannabis use.

AB 2188 prohibits most employers from discriminating against a person in hiring, termination, or setting conditions of employment if the discrimination is based on either:

• Cannabis use off the job and away from the workplace, except for preemployment drug testing that does not screen for non-psychoactive cannabis metabolites; or
• An employer-required drug test that finds non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

AB 2188 clarifies that employers are allowed to use tests that prove the individual was impaired by tetrahydrocannabinol (THC), the primary chemical compound in cannabis that causes impairment and psychoactive effects, while working. Rather, the law is intended to prohibit employers from using the traditional drug testing of non-psychoactive cannabis metabolites (components that are stored in the body after THC is metabolized). Because the detection of non-psychoactive metabolites in hair, blood, or other bodily fluid samples only indicates that marijuana has been consumed sometime in the last few weeks, and does not indicate that an employee was impaired at the time of testing, the use of such testing will now violate FEHA.

A related bill, SB 700, further amends FEHA to prohibit employers from requesting information from job applicants relating to their prior use of cannabis. Employers are also prohibited from using information obtained from a criminal history about an applicant or employee’s prior cannabis use unless the employer is permitted to consider or inquire about that information under CA’s Fair Chance Act[1], or is required to inquire under other state or federal law.

Several categories of employees are exempt from AB 2188 and SB 700: building and construction employees; applicants or employees hired for positions that require federal government background investigations or security clearance; and applicants or employees required to be tested under state or federal law as a condition of (1) employment, (2) receiving federal funding or federal licensing-related benefits; or (3) entering into a federal contract.

Despite these expanded protections for off-duty cannabis use, employers may still prohibit employees from working while under the influence and should set forth clear written policies, acknowledged by employees, delineating both the off-duty conduct that is protected as well as the on-duty behavior that is prohibited.