The California Assembly has passed a bill that would prohibit employers from discriminating against workers and job applicants for off-duty marijuana use.
Assembly Bill (AB) 2188 would amend the state's Fair Employment and Housing Act to make it unlawful for employers to discriminate against both job applicants and employees for the "use of cannabis off the job and away from the workplace." If passed, the bill would also prevent discrimination against applicants or employees that fail drug tests detecting "nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids."
The bill would not permit employees to be impaired by or use cannabis on the job. It also carves out provisions for building and construction trades employees, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces.
California currently has a large body of laws legalizing and regulating marijuana use. It was one of the first states to legalize medicinal cannabis (1996) and recreational marijuana (2016), with Proposition 64.
Proposition 64 expressly provides that employers will not be required to accommodate an employee's use of marijuana, even private and off-the-job usage. AB 2188 reflects an effort to legalize and regulate the non-medical use of marijuana. The bill passed the Assembly on May 26, 2022 and was read in the Senate for the first time on May 27, 2022. If it makes it to the Governor's desk, he will have to veto or sign it by September 30, 2022.
Editor's Note: In a case titled Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court examined the conflict between California's Compassionate Use Act, which gives a defense to certain state criminal charges to a person who uses marijuana for medical purposes on a physician's recommendation, and allows that person to possess the drug, and federal law, which still prohibits the drug's possession, even by medical users. The court held that the Compassionate Use Act did not intend to address the rights and obligations of employers and employees, and further held that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.