AB 2188 – Potential Protection For Employees Who Use Cannabis Under New Proposed Law

Discrimination and Harassment August 23rd, 2022
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The California Senate has actively been addressing the employment and housing rights of people who use cannabis. In 2022, AB 2188 was amended three times with the last amendment occurring on June 30, 2022. All aspects of the bill, if passed by the CA Senate, would become law beginning on January 1, 2024. Here is a look at some of the potential protection for employees who use cannabis.


How Would AB 2188 Affect Your Cannabis Rights in the Workplace?


AB 2188 would make it illegal for employers to discriminate against applicants based on the applicant’s use of cannabis. Currently, AB 2188 specifies that the use of cannabis must occur away from the site of employment and while the employee is not on duty.

Further, AB 2188 makes it illegal for an employer to terminate an employee because the employee uses cannabis during their non-working life. Some exceptions revolve around pre-employment drug testing or for industries or careers where there is federal jurisdiction.

AB 2188 makes it clear that employees are not to show up to work high or impaired. For example, smoking or consuming cannabis with THC in it an hour before you go to work may not fall under the protection of AB 2188. If you are still impaired or high by the time you get to work, it is likely that the protection of AB 2188 will not shield you if you are caught on the job high or impaired.

AB 2188 also makes it clear that drug testing results from urine, hair samples, blood, or bodily fluids where the presence of nonpsychoactive cannabis metabolites are present cannot be used as grounds for disciplinary action or termination. If your employer uses tests that look at impairment and can prove that you are impaired while at work, there may be a cause for termination. Currently, this is a gray area and an employment lawyer would be your best choice if you feel you were unfairly targeted, disciplined, or terminated from your job based on the results of impairment or a drug test.

There appear to be blanket exceptions based on industries – such as those in the building and construction trades.


AB 2188 Does Not Apply When a Federal Background Check is Required


For most jobs that require a federal background check or clearance, AB 2188 will likely not protect the employee. It will also not provide protection from state and federal jobs where the employee must be free of any controlled substance or where mandatory controlled drug testing is routine.

Some aspects of AB 2188 will become law on January 1, 2024. There are still gray areas and further amendments to the bill may occur, or a new bill may be heard by the CA Senate.


Contact DLaw if You Feel You Are Facing Discrimination Due to Cannabis Use


If you feel you have been or may experience discrimination due to the use of cannabis by your employer, reach out to one of our qualified employment law attorneys to learn about your rights as an employee in California.  Give us a call at 1 (818) 275 5799 for a free consultation!

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