Written By Digital Content Editor Thomas Ahearn

On September 18, 2022, California Governor Gavin Newsom signed Assembly Bill 2188 (AB 2188) that “protects Californians from employment discrimination based on their use of cannabis off-the-clock and away from the workplace,” according to a story on the Governor’s website. The law will take effect on January 1, 2024.

Introduced by Assembly Member Bill Quirk (D-Hayward), AB 2188 would prohibit employers from punishing workers who fail certain drug tests – which typically analyze urine samples – that detect only inactive cannabis compounds called metabolites that follow marijuana use from days and even weeks prior to the drug test.

Instead, AB 2188 would have employers administer drug tests that use saliva to check for tetrahydrocannabinol (THC) which is the main psychoactive compound in marijuana and would indicate whether an employee is currently under the influence of marijuana. Employees could be fired for failing these tests.

The bill would exempt applicants and employees in the building and construction trades, and in positions requiring a federal background investigation or clearance. The bill does not preempt state or federal laws requiring applicants or employees to be drug tested for controlled substances as a condition of employment.

Six states – Nevada, New York, New Jersey, Connecticut, Montana, and Rhode Island – have laws that protect the use of recreational marijuana by workers while 21 states have laws protecting workers who use medical marijuana, according to the National Organization for the Reform of Marijuana Laws (NORML).

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