Virtually all California employers with five or more employees are covered by the Fair Employment and Housing Act (FEHA), the state’s most noteworthy civil rights law. FEHA protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment free from discrimination by establishing a comprehensive scheme to combat employment discrimination.

It currently prohibits covered employers from discriminating against any person with respect to nearly all terms, conditions, and privileges of employment on the basis of any of the following: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

With the passage of Assembly Bill 2188, which adds Section 12954 to the Government Code, California lawmakers have included another protected category to that list—off-duty and off-site cannabis use. In addition, the new law amends FEHA to prohibit employers from taking action based upon traditional drug screening methods.

In the new law, the Legislature finds and declares that tetrahydrocannabinol (THC)—the psychoactive chemical compound in cannabis—is stored in the body as a nonpsychoactive cannabis metabolite after it is metabolized. The law further states that these metabolites do not indicate impairment, but only that an individual has consumed cannabis in the last few weeks.

Presently, according to the Legislature, the intent of employment-related drug tests is to identify employees who may be impaired or under the influence of THC at a worksite. However, most cannabis drug tests tend to only show the presence of the nonpsychoactive cannabis metabolites that have no correlation to present impairment. Further, the Legislature observed that because the science has improved, alternative drug tests that better correlate to impairment are more readily available and do not rely upon the presence of nonpsychoactive cannabis metabolites to identify the presence of recently consumed THC. 

AB 2188 aims to address that perceived disconnect. In particular, the bill amends FEHA to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s “use of cannabis off the job and away from the workplace.” But, that rule would not prohibit an employer from discriminating in hiring or any term of employment based on a “scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” 

In addition, FEHA will now prohibit discrimination in hiring or any term of employment based upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair or bodily fluids. 

In all events, Government Code Section 12954 does nothing to permit an employee to possess, be impaired by, or use cannabis on the job, or affects the rights or obligations of an employer to maintain a drug and alcohol free workplace.

The new portion of FEHA created by AB 2188 does not apply to (1) employees in the “building and construction trades” or (2) applicants or individuals hired for positions that require a federal government background investigation or security clearance. The new law also does not preempt any state or federal laws requiring individuals to be tested for controlled substances or as a condition related to federal funding or licensing-related benefits.

AB 2188’s changes to FEHA are effective as January 1, 2024. Once in effect, they will substantially alter how and when employers can drug test employees for cannabis, and what they can do with those results. Employers may want to consider reviewing existing employment hiring, discipline, and termination policies and practices now to ensure they are in compliance upon the law taking effect. And, employers who utilize pre-employment drug screening will need to identify and source compliant testing methods in order to continue pre-employment screenings consistent with the new requirements. Employers should consult with their labor and employment counsel to ensure that they are ready, able, and prepared to comply with the new law once it takes effect.