California Assembly Bill 2188 Would Prevent Employers from Discriminating Against Workers Using Marijuana Outside of Workplace

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California Assembly Bill 2188 Would Prevent Employers from Discriminating Against Workers Using Marijuana Outside of Workplace

In August 2022, the California State Legislature approved Assembly Bill 2188 (AB 2188) which would make it unlawful for employers in the Golden State to discriminate against workers that legally use recreational or medicinal marijuana outside of their workplaces. If California Governor Gavin Newsom signs the bill, the law would take effect on January 1, 2024.

AB 2188 – which was introduced by Assembly Member Bill Quirk (D-Hayward) – would prohibit employers from punishing workers who fail workplace drug tests that analyze urine samples and only detect inactive cannabis compounds called metabolites which are made when breaking down Tetrahydrocannabinol (THC), the main psychoactive compound in marijuana.

According to the bill, THC “is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.”

The bill continues: “The intent of drug tests is to identify employees who may be impaired. While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.”

Instead, the bill states that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites. These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.”

The bill would exempt applicants and employees in the building and construction trades, and in positions requiring a federal background investigation or clearance. The bill does not preempt state or federal laws requiring applicants or employees to be drug tested for controlled substances as a condition of employment. A copy of California AB 2188 is available here.

Currently, six states – Nevada, New York, New Jersey, Connecticut, Montana, and Rhode Island – have laws that protect workers who use recreational marijuana and twenty-one states have laws protecting workers who use medical marijuana, according to the National Organization for the Reform of Marijuana Laws (NORML). Marijuana is still illegal under federal law.

ClearStar is a leading Human Resources technology company specializing in background checks, drug tests, clinical testing, and occupational health screening. ClearStar offers drug and clinical testing that is fully integrated with major laboratories and provides a single candidate invite for all services via text or email. For more information, contact ClearStar today.

ClearStar will sponsor a free webinar titled “Continuing the Discussion: A Deep Dive Into 5 More States’ Drug Testing Laws” hosted by Bill Current, President and Founding Partner of the Current Consulting Group, LLC (CCG), and CCG’s Senior Legal Consultant Yvette Farnsworth Baker, Esq, on Wednesday, September 21, 2022. To register for the free webinar, click here.

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    Thomas Ahearn - Digital Content Editor

    Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background, drug, and occupational health screening. He writes about a variety of topics in the background screening industry including "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, the Equal Employment Opportunity Commission (EEOC), the Fair Credit Reporting Act (FCRA), HR technology, identity theft and fraud, privacy, social media background checks, and workplace violence.

    At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.

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