AB 2188 Prohibits California Employers From Using Most Marijuana Tests

AB 2188 is one of the newly signed Bills in the state of California. AB 2188 adds the state of California to the list of states in the U.S. that bar employers from penalizing employees and job applicants who smoke marijuana off the job and away from the workplace. The Bill prohibits employers from making employment-related decisions, such as hiring or firing decisions, based on an employee’s or job applicant’s outside-of-work and off-site marijuana use.

AB 2188 prevents California employers from discriminating against an employee or job applicant because of a drug test that discovers non-psychoactive cannabis metabolites in the hair, blood, urine, or bodily fluids. Cannabidiol, also referred to as CBD, is the non-psychoactive component of cannabis. According to the WHO, CBD has no public health risk, and neither does it have abuse potential. According to AB 2188, employers are only allowed to take adverse employment actions against a person if the person is impaired by marijuana while at work. To determine if an employee is impaired by cannabis while at work, an employer must test for Tetrahydrocannabinol (THC), the psychoactive component in cannabis. THC can impair judgment, attention, and coordination. 

If a California employer wants an employee to undergo a drug test, the test should only look for THC. An employer cannot ask you to undergo a test if they are looking for the presence of CBD. Additionally, according to AB 2188, testing will only be allowed to detect current impairment on the job by THC. The key word here is “current.” This means that merely detecting the presence of THC might not be enough. A mere indication of THC is usually insufficient to warrant the conclusion that a person is currently impaired on the job. After a person uses marijuana, THC can remain in the body for up to several weeks. Therefore, the presence of THC might indicate that a person has recently consumed marijuana. It might not necessarily mean they are currently impaired by marijuana while at work.

Currently, the tests that employers use do not accurately indicate a level of impairment from cannabis. They simply indicate the presence of THC. California employers have less than fifteen months to find better tests for determining if an employee is currently impaired on the job. If, after AB 2188 takes effect on January 1, 2024, an employer continues to use tests that cannot accurately tell if an employee is currently impaired while on the job, they may be in violation of the law. 

Policies for Drug Testing

Apart from needing to use better ways for testing for marijuana in the workplace, employers must have adequate policies in place for drug testing. If an employer does not have proper drug testing policies, they may not be allowed to test an employee because of privacy concerns. However, there are some exceptions. 

In conclusion, it is important to note that AB 2188 not only allows employers to take adverse employment actions against a person if they are currently impaired by marijuana while at work. The law also permits California employers to take adverse employment actions against a person for possessing marijuana while at work. 

Talk to a California Employment Lawyer

If you need help understanding AB 2188, contact a qualified California employment lawyer near you.