What’s New in Employment Law?

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New Cannabis Protections for California Workers

by Jennifer Shaw | | September 22, 2022

Effective January 1, 2024, it will be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screenings; and (2) an employer-required drug screening test that reveals non-psychoactive cannabis metabolites in samples of hair, blood, urine, or other bodily fluids.

Assembly Bill (AB) 2188, which the Governor signed last week, permits an employer to refuse to hire an applicant based on a pre-employment drug that screens for “non-psychoactive cannabis metabolites.” In other words, tests that screen simply for the presence of marijuana will no longer be lawful. On the other hand, tests that screen for the presence of tetrahydrocannabinol (THC), and tests that measure a person’s marijuana-related impairment, will be permitted.

Huh? Here’s the deal. THC is a chemical compound in cannabis that can indicate impairment and cause “psychoactive” effects. After THC is metabolized, it is stored in the body as “non-psychoactive cannabis metabolites,” which reveal only that an individual recently has consumed cannabis, not that they are impaired.

So…

  • AB 2188 does not permit an employee to possess or use cannabis at work, or be impaired by cannabis on the job.
  • Employers may still maintain a drug- and alcohol-free workplace, subject to the requirements described above.
  • The new law does not preempt 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.

There are various exceptions in the law for certain industries, including applicants and employees in the construction and building trades, and those in positions requiring a federal background investigation or clearance.

Be sure to join us for our 23rd Annual Employment Law Update to learn more about AB 2188 and other new laws and court decisions.  Register here.

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