Tuesday, October 4, 2022


As extensively anticipated, Governor Newsom signed AB 2188 into regulation extending FEHA safety to workers who use hashish whereas off responsibility and off-premise.  This increased safety for workers who use hashish shall be efficient on January 1, 2024.  Employers have ample time to roll out compliant insurance policies and testing procedures previous to the efficient date.

Utilizing Pot Whereas Off-Obligation and Outdoors of Work Will probably be Protected Beneath the FEHA

Beneath present regulation, the California Truthful Employment and Housing Act (“FEHA”), safeguards the proper and alternative for all individuals to pursue, acquire and maintain employment with out discrimination or harassment on account of a number of protected classes.  At present, the FEHA protects potential and present workers from discrimination and harassment on the idea of race, faith, nationwide origin, bodily and psychological incapacity, intercourse, gender and age, amongst different protected classes.  Typically Hashish use is said to incapacity, however the strains of whether or not and when that must be accommodated have been blurry

The California legislature notes that the tetrahydrocannabinol (THC) “is the chemical compound in hashish that may point out impairment and trigger psychoactive results.”  After THC is metabolized, it’s saved within the physique as nonpsychoactive metabolites, which might stay detectable within the physique for a number of weeks.  The presence of the nonpsychoactive metabolites doesn’t point out that an individual is impaired.  The legislature additional famous that the “intent of drug assessments is to establish workers who could also be impaired” and that superior science has created different assessments just for the presence of THC. 

With that background in thoughts, AB 2188 prohibits employers from discriminating in opposition to candidates or workers on the idea of drug assessments displaying the presence of the nonpsychoactive hashish metabolites or the particular person’s use of hashish off the job and away from the office.

Notably, employers can nonetheless keep a drug and alcohol-free office.  Beneath the brand new regulation, workers shall not possess hashish whereas on the office or be impaired by or use hashish whereas on the job.  Employers should take a look at for managed substances as a situation of employment.

AB 2188 doesn’t apply to workers within the constructing and building trades and people requiring a federal background investigation or clearance.

Key Takeamethods

Stepping into the weed(s) of what employers ought to do to organize themselves for the brand new laws, employers who use pre-employment drug assessments and screening might want to monitor developments and the provision of compliant hashish assessments.  Starting in 2024, any disciplinary actions taken in opposition to an worker for the presence of the nonpsychoactive hashish metabolites can result in claims or litigation. 

To place it bluntly, many industries might decide to forego pre-employment drug assessments.  In some non-safety delicate workplaces (maybe retail, customer support, or many varieties of distant work), an worker with some leftover nonpsychoactive metabolites of their system won’t be an enormous deal.    

Lastly, employers ought to assessment present drug and alcohol testing and use insurance policies and practices upfront of January 1, 2024 to make sure they’re compliant with AB 2188. 

Depart it to California to blaze ahead with a brand new regulation that challenges the established order for weed at work.



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