California Expands Employees' Right To Off-Duty Cannabis Use

• Published date: 10 October 2022
• Subject Matter: Employment and HR, Cannabis & Hemp, Discrimination, Disability & Sexual Harassment
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Tyler Z. Bernstein and Susan Haines

Beginning January 1, 2024, and following the passage of Assembly Bill 2188, the California Fair Employment and Housing Act (FEHA) will add employee protections against discrimination based on off-the-job cannabis use with a few, limited exceptions. Governor Newsom signed Assembly Bill 2188 into law on September 18, 2022. AB 2188 focuses on employee impairment from cannabis use, which it correlates only to the psychoactive component of cannabis, tetrahydrocannabinol (THC) and places new requirements on employer-required drug screening tests. AB 2188 is significant because it is the first time that California's permissive cannabis-use laws have been incorporated into the employment realm. California employers should consider reviewing their job application process and any pre-employment drug screening protocols, as well as their policies and practices relating to drug screening in connection with hiring, discipline, and termination to ensure they will comply with the new law.

To understand the transformative effect of AB 2188, a brief review of federal law and current California state law with respect to cannabis is instructive. Since 1971, cannabis (marijuana) has been classified as a Schedule 1 drug by the federal government under the Controlled Substances Act. Schedule 1 drugs, like cannabis, are described as having "no currently accepted medical use," "a high potential for abuse," and "a lack of accepted safety for use . . . under medical supervision." 21 U.S.C. ' 812(b)(1). Federal law remains unchanged, and cannabis is still classified as a Schedule 1 drug. However, California law conflicts with federal law when it became the first state to legalize medical marijuana through Compassionate Use Act of 1996 which exempted patients and their primary care givers from criminal prosecution for obtaining and using cannabis for medical purposes with a physician's recommendation.

Although the Compassionate Use Act protected an individual from criminal prosecution, that protection did not extend to the workplace. In a disability discrimination case based on the use of medical marijuana and brought under the FEHA, the California Supreme Court upheld the employee's termination for cannabis use and found that "[n]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees" and "[u]nder California law, an employer may require preemployment drug tests and...