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California Introduces Bill Protecting Off-the-Clock Cannabis Use

A bill recently introduced in the California Assembly proposes to outlaw discrimination against employees who use cannabis outside of work.

The legislation, Assembly Bill (AB) No. 2188, would amend California’s anti-discrimination employment law, the Fair Employment and Housing Act (FEHA), and make discrimination against an adult applicant or employee an illegal practice for a employer due to “consumption of cannabis by a person outside of work and outside the workplace”. workplace.” AB 2188 would also prevent discrimination against an applicant or employee who fails a drug test that detects “non-psychoactive cannabis metabolites in their urine, blood, hair or his bodily fluids.

The bill would not allow an employee “to be intoxicated or use cannabis at work” or affect “an employer’s rights or obligations to maintain a drug-free and drug-free workplace.” alcohol, as specified in Item 11362.45 of the Health and Safety Code. (Hyperlink added.)

AB 2188 includes exclusions for building and construction trades, federal contractors, recipients of federal funding, or federal licensees required to maintain drug-free workplaces. Its provisions also exclude professions that are required by federal or state law to be tested for controlled substances.

If enacted, AB 2188 would be the first California law providing workplace protection for cannabis users.

California Proposition 215 legalized the medical use of marijuana in 1996. The law did not provide workplace protections for the use of medical marijuana off-duty and off-site. In 2008, in Ross v RagingWire Telecommunications, Inc.the California Supreme Court determined that a disabled person who used marijuana for medical purposes was not protected by FEHA.

In 2016, California voters approved Proposition 64, which legalized the recreational use of marijuana. Proposition 64 claimed not to affect the rights of employers in the workplace. The legislative initiative stated that its purpose and intent, among other objectives, was to “[a]allow public and private employers to adopt and enforce workplace policies relating to marijuana. The initiative also provided that nothing in it would be “considered or construed to modify, repeal, affect, restrict or prevent… [t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace.

The California Chamber of Commerce opposes AB 2188. In an April 23, 2022 letter posted on its website, CalChamber expressed its concerns:

AB 2188 … prohibits the use of metabolite-based testing for marijuana making any discipline based on metabolite testing a violation under FEHA. We have concerns about the feasibility and cost of the alternative tests recommended by AB 2188, in particular the saliva and deficiency tests. These tests are relatively new and we are concerned about their reliability in identifying marijuana use. Additionally, we have concerns about the effectiveness of saliva-based tests for marijuana consumed in an edible form.

CalChamber also raised concerns in the letter that AB 2188, if enacted, would limit or eliminate pre-employment marijuana testing and make discipline on the workplace in case of reasonable suspicion.

AB 2188 is currently under review by the California Assembly committee. The bill will have to go through both houses of the California Legislature before landing on the governor’s desk. The governor has until September 30, 2022 to sign or veto the bills.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 117


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