{"id":1242,"date":"2022-10-20T12:47:19","date_gmt":"2022-10-20T16:47:19","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/cannabis\/?p=1242"},"modified":"2022-10-20T12:47:19","modified_gmt":"2022-10-20T16:47:19","slug":"california-joins-growing-list-of-states-to-protect-employees-off-duty-use-of-marijuana","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/cannabis\/2022\/10\/20\/california-joins-growing-list-of-states-to-protect-employees-off-duty-use-of-marijuana\/","title":{"rendered":"California Joins Growing List of States to Protect Employees\u2019 Off-Duty Use of Marijuana"},"content":{"rendered":"

By Jennifer Kearns<\/a> and Danielle Dwyer<\/a><\/p>\n

Starting January 1, 2024, employers in California will be prohibited from interfering with their employees\u2019 off-duty use of marijuana.\u00a0 On September 18, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188 (AB 2188), which amends California\u2019s Fair Employment and Housing Act (FEHA) to add protections for employees by prohibiting employers from refusing to hire, firing, or otherwise taking an adverse action against an employee based on the employee\u2019s \u201cuse of cannabis off the job and away from the workplace.\u201d\u00a0 Although medicinal marijuana has been legal in California since 1996, and recreational marijuana legal since 2016, the FEHA did not previously provide workplace protections for employees\u2019 permissive use of marijuana.<\/p>\n

AB 2188 also amends the FEHA to prohibit discrimination in hiring or any term or condition of employment based on employer-required drug screening tests that detect \u201cnonpsychoactive cannabis metabolites\u201d in the employee\u2019s \u201chair, blood, urine, or other bodily fluids.\u201d\u00a0 The California legislature stated that because most marijuana tests can only detect whether cannabis metabolites are present, and have \u201cno correlation to impairment on the job,\u201d employers will need to instead rely on alternative tests to determine whether an employee is under the influence at work.\u00a0 These alternative tests can include \u201cimpairment tests\u201d that \u201cmeasure an individual employee against their own baseline performance,\u201d or tests that \u201cidentify the presence of THC in an individual\u2019s bodily fluids.\u201d<\/p>\n

Although the law does not specify what constitutes an \u201cimpairment test,\u201d it is possible the legislature was referencing tests that measure an individual\u2019s motor functions, the visual effects of being high, and\/or obvious cognitive impairments such as impaired gait or mobility, glassy eyes, changes in speech, and\/or reasoning ability.\u00a0 However, at this time, there is no universal definition, legally or medically, of what constitutes \u201cimpairment.\u201d\u00a0 Employers wishing to utilize impairment tests should develop a protocol that identifies the signs of impairment that will be assessed and that includes training supervisors on recognizing and documenting signs of impairment.<\/p>\n

It is also not immediately clear upon which bodily fluid tests employers can rely given that THC can remain detectable in a person\u2019s system weeks after use and such tests might not be able to provide objective data as to whether an employee is impaired at a specific time.\u00a0 The intent of AB 2188 is to protect an employee\u2019s off-duty use, so if an employee partakes on a Saturday and fails a drug test on a Wednesday, but is not impaired on Wednesday, taking action against that employee would be discriminatory and unlawful. \u00a0Employers that rely on physical drugs should consider incorporating impairment tests into their drug testing procedures.\u00a0 A two-fold approach may better protect an employer from liability under AB 2188.\u00a0 Employers should also confirm with their drug testing providers that the provider tests for the presence of THC and not nonpsychoactive cannabis metabolites.<\/p>\n

Importantly, AB 2188 does allow employers to prohibit marijuana use on the job and\/or at the worksite and specifically states that there is a \u201cconsensus\u201d that employees \u201cshould not arrive at a worksite high or impaired.\u201d\u00a0 Employers would also still be permitted to maintain drug-free workplaces and prohibit the possession of marijuana at the workplace.\u00a0 The bill exempts employees \u201cin the building and construction trades,\u201d and positions which require federal drug tests and\/or background tests.<\/p>\n

With the amendments to the FEHA, California joins a growing list of states that have enacted employee protections for the recreational use of marijuana including Connecticut, Illinois, Montana, New Jersey, New York, and Rhode Island.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Jennifer Kearns and Danielle Dwyer Starting January 1, 2024, employers in California will be prohibited from interfering with their employees\u2019 off-duty use of marijuana.\u00a0 On September 18, 2022, Governor Gavin Newsom signed into law Assembly Bill 2188 (AB 2188), which amends California\u2019s Fair Employment and Housing Act (FEHA) to add protections for employees by … <\/p>\n

Continue reading “California Joins Growing List of States to Protect Employees\u2019 Off-Duty Use of Marijuana”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[94,908,907,906],"ppma_author":[714],"class_list":["post-1242","post","type-post","status-publish","format-standard","hentry","category-general","tag-california-cannabis","tag-feha","tag-governor-newsom","tag-off-duty-use"],"authors":[{"term_id":714,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","author_category":"1","last_name":"Sullivan","first_name":"Margaret","job_title":"","user_url":"http:\/\/www.duanemorris.com","description":"Visit the Duane Morris website.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1242","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/comments?post=1242"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1242\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/media?parent=1242"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/categories?post=1242"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/tags?post=1242"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/ppma_author?post=1242"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}