Skip to content

This blog post is a Q&A on California Assembly Bill-2188 – Discrimination in employment: use of cannabis.

When will AB 2188 go into effect?

AB 2188 was signed by Governor Newsom on Sept. 18, 2022, but will not become operative until Jan. 1, 2024.

Isn’t cannabis use already legal in California?

Yes, the use of cannabis – also known as marijuana – for medicinal purposes has been allowed in California since voters passed Proposition 215 in 1996. California went a step further after the 2016 passage of Proposition 64, which legalized recreational marijuana use. Prop. 64, however, did not restrict employers from enacting and enforcing workplace policies pertaining to cannabis.

What will AB 2188 do?

AB 2188 prohibits employers from discriminating against employees based on: (1) the employee’s use of cannabis off the job and away from the workplace; and (2) a drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Are there exceptions to AB 2188’s new rules?

Yes, AB 2188 does not apply to employees in the “building and construction trades.” Nor does it apply to employees in positions requiring federal government background investigations or security clearances through the United States Department of Defense.

Can I discipline an employee who shows up to work high?

Yes, the new law does not permit an employee to be “impaired by” cannabis on the job. The statute does not define impairment, which could lead to future litigation.

Can I still drug test my employees?

Yes, the statute continues to allow employers to use-test their employees so long as the tests are not based on whether the employee has “nonpsychoactive cannabis metabolites” in their body. This could include tests that measure the presence of tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis. Further, AB 2188 does not impact any state or federal laws that require certain employees to be tested for controlled substances.

Can I still prohibit my employees from possessing marijuana in the workplace?

Yes, AB 2188 does not provide employees with the right to possess marijuana on the job.

Do any other states have similar protections?

Yes, Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island have all passed laws protecting employees who recreationally smoke marijuana outside the workplace.

Isn’t marijuana use illegal under federal law?

The federal prohibition on marijuana has existed since 1937, and federal law continues to classify cannabis as an illegal substance. Federal authorities are still authorized to prosecute Californians who use cannabis, but it is still unclear if and how that authority will be used. President Biden recently issued a presidential proclamation that pardons federal convictions for simple marijuana possession offenses. Also, the Office of Personnel Management previously issued a memorandum prohibiting federal agencies from automatically finding individuals unsuitable for federal employment based on prior marijuana use. This may indicate that federal prosecution is not likely for marijuana users who act in compliance with state and local marijuana laws and consistent with federal concerns such as preventing minors from using marijuana.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Philip Person Philip Person

Philip I. Person focuses his practice on representing employers in wage and hour, wrongful termination, harassment, discrimination, retaliation, trade secret misappropriation, non-competition, non-solicitation, and whistleblower claims. Philip is an experienced litigator, having defended employers against single-plaintiff and class action litigation in both federal

Philip I. Person focuses his practice on representing employers in wage and hour, wrongful termination, harassment, discrimination, retaliation, trade secret misappropriation, non-competition, non-solicitation, and whistleblower claims. Philip is an experienced litigator, having defended employers against single-plaintiff and class action litigation in both federal and state courts. He also represents employers in labor and employment arbitrations.

Philip coordinates with executives and management to develop and implement plans to mitigate the employer’s risk. He often counsels and advises his clients on employment issues pertaining to leaves of absence, disciplinary actions, terminations, restructurings, reductions in force, employee classifications, handbooks, and policies.

As the Co-Host of The Performance Review podcast, Philip regularly provides insightful employment law updates and interviews company representatives regarding employment laws and issues affecting multiple industries.

In addition to his employment litigation and counseling practice, Philip serves as the Co-Chair of the Restructuring & Employment Due Diligence Subgroup within Greenberg Traurig’s Labor & Employment Group, Co-Lead of Greenberg Traurig’s California Wage & Hour Taskforce, Co-Chair of the Greenberg Traurig African American Inclusion Network (GAIN), and as a member of the Greenberg Traurig Justice Initiative.

Photo of Chris Cruz Chris Cruz

Chris Cruz is an experienced employment law litigator and counselor who focuses on representing employers in a wide range of complex, single plaintiff and multiparty matters involving wage and hour, wrongful termination, and retaliation issues. His work as an in-house attorney has provided

Chris Cruz is an experienced employment law litigator and counselor who focuses on representing employers in a wide range of complex, single plaintiff and multiparty matters involving wage and hour, wrongful termination, and retaliation issues. His work as an in-house attorney has provided him with deep insight into the business objectives of his clients and their day-to-day concerns, allowing Chris to provide practical legal advice to his clients on compliance and strategic matters such as employee discipline, reductions in force, accommodations and leaves of absence, development and implementation of policies and handbooks, and other workplace issues. Chris efficiently guides clients and strives to help employers avoid litigation before it begins, but has the courtroom experience necessary to take a case to verdict when it is in his client’s best interest.

In addition to his employment experience, Chris has broad experience in complex commercial, product liability, and financial litigation from pre-litigation assessment and settlement negotiations to trials across the country.