A California bill that would ban discrimination of employees who use cannabis off-the-clock has passed the State Assembly and is now on its way to the State Senate.
Assembly Bill No. 2188 calls for revision of the state’s Fair Employment and Housing Act (FEHA) – specifically the provision that deals with employment antidiscrimination. It would make it unlawful for employers to take adverse employment action against adult applicants or employees based on the individual’s use of cannabis off the jobsite and while not working. Employees who test positive for non-psychoactive cannabis metabolites in their urine, blood, hair, or bodily fluids could not be discriminated against.
However, the law would not allow workers to be impaired by cannabis, use it at work, or violate employer rules in accordance with maintaining a drug-free and alcohol-free workplace, as outlined in California Health and Safety Code Section 11362.45. There would also be an exception for federal contractors, federal funding recipients, federal licensees required to maintain drug-free workplaces, and those who work in the building and construction trades. Any employer required by state or federal law to test employees for controlled substances would also be exempt.
As our Los Angeles marijuana lawyers can explain, if this bill passes, it would be the first California workplace law protecting cannabis users. When voters legalized the use of medicinal marijuana in 1996, there was no baked in provision to protect off-duty, off-premises medical marijuana use. Further, even after recreational marijuana was legalized in the state in 2016, a 2018 California Supreme court ruling in Ross v. RagingWire Telecommunications, Inc. held that a person with disabilities who used medical marijuana was NOT protected under FEHA. AB 2188 would represent a marked shift from that position – and protect not just medical marijuana users, but also those who use recreationally. Continue reading