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A New Change to California’s Marijuana Law Will Impact Employees Who Use It Outside of Work

By Dr. Steve Albrecht

Governor Gavin Newsom recently signed Assembly Bill (AB) 2188, making California the seventh state in the U.S. that does not allow employers to discriminate against workers who use marijuana “off the job and away from the workplace” and test positive for it in a company or agency-requested drug test. (The other states are Rhode Island, Nevada, Connecticut, Montana, New Jersey, and New York.) The law goes into effect on January 1, 2024.

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The bill was authored by Assemblymember Bill Quirk (D-Hayward), who said that the law would not allow employees to show up to work under the influence. Supporters of California’s medical and recreational marijuana users have long argued that employer drug tests – most often via urine samples – do not indicate impairment from marijuana, only recent use. Depending on the level of tetrahydrocannabinol (THC) – the substance in cannabis that causes the user to feel high – and how it is consumed (through smoking, vaping, or eating edibles), the amount used, and the frequency of use – employees can still have THC in their bodies from 10 to 35 days after their last use.

In a Twitter post, Assemblymember Quirk said, “AB 2188 would prohibit employers from discriminating against hiring or terminating, a person who has consumed cannabis legally during their time off and away from work, or who has tested positive, forgiving non-psychoactive cannabis metabolites in their urine, hair, or bodily fluids.”

After the signing, Assemblymember Quirk posted to Twitter, “I am happy to say my bill AB 2188 was signed by the @CAgovernor yesterday. Thank you to the advocates and sponsors for your continued support. I applaud the Governor for his commitment to redress the harms of cannabis prohibition. This reform is long overdue. @CaliforniaNORML”

The Twitter handle at the end of his post refers to the California chapter of the National Organization for the Reform of Marijuana Laws, which supported his bill. “Urine tests are a highly offensive invasion of workers’ personal bodily privacy,” said Dale Gieringer, director of California’s NORML chapter. “Workers should have the same right to use cannabis as other legal substances off the job.”

In a letter to lawmakers, the California Chamber of Commerce said it opposed the legislation, calling the bill a “job killer” because it would “create an unprecedented, protected class for marijuana users and undermines employers’ ability to provide a safe and drug-free workplace” under state law. “Put simply: marijuana use is not the same as protecting workers against discrimination based on race or national origin.”

Assemblymember Quirk said AB 2188 will still allow employers to restrict marijuana use on the job. The bill would not allow employees “to possess, to be impaired by, or to use, cannabis on the job.” The bill does not alter “the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.” He said building and construction trade employees and those working under federal contracts are exempt.

What is not immediately apparent is how this will affect California employees working in so-called “safety-sensitive” positions, like police officers; firefighters; ship, train, and subway operators; pilots and air traffic controllers; and the many Department of Transportation-sanctioned truck drivers, as holders of a Commercial Motor Vehicle (CMV) license. CMV holders are typically defined as safety-sensitive if they drive a truck weighing more than 26,001 pounds; haul placarded/HazMat materials, or carry 16 or more passengers.

The bill’s language says, “it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”

The law still allows employers to require drug screening as a condition of employment if the tests “do not screen for non-psychoactive cannabis metabolites.” After using marijuana, the THC becomes a non-psychoactive cannabis metabolite, which can stay in the system for weeks. That metabolite does not indicate current impairment.

Unlike the agreed-upon national standard of .08 blood alcohol level for driving while intoxicated, there is no court or medically-certified agreement as to what level of THC constitutes “impaired due to marijuana use.” Some states’ guidelines say that when the THC concentration is above five nanograms/ml in the person’s blood, they are considered impaired.

You can refer to the entire bill here. For questions regarding the bill, contact the Authority’s Employment Hotline or your regional risk manager.

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