Torts Illustrated: Employees, yes you cann...abis

California's notorious and pioneering cannabis laws just got more expansive.

Now, with the signing of AB 2188 into law by Gov. Gavin Newsom on Sept. 18, employers will be limited in their ability to discriminate against employees' off-the-job recreational cannabis use beginning Jan. 1, 2024.

This is a significant new development in California, which was the first state to legalize medical cannabis use in 1996, followed by recreational use in 2016 with the passage of Proposition 64. The passage of AB 2188 now extends protections into the workplace, which was an arena undisturbed under the Prop. AB 2188 appears to be the natural progression of cannabis law in California since it is safe to assume many, if not most, recreational cannabis users are also employees of a workplace. Therefore, it would be contradictorily disjunctive to permit cannabis use recreationally as a state, but still allow employers to discriminate against employees in the hiring, termination, or any term or condition of employment, or otherwise penalize an employee who partakes in cannabis recreationally off-the-job, and AB 2811 seems to provide this needed bridge.

Addition of Government Code Section 12945 to FEHA

Specifically, AB 2188 amends the Fair Employment and Housing Act (FEHA) to add Section 12945, which provides that, "[i]t is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon, (1) the person's use of cannabis off the job and away from the workplace; or 2) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. Nonpsychoactive cannabis metabolites take form after tetrahydrocannabinol (THC) is metabolized and stored in the body. The Legislature raised the psychoactive/nonpsychoactive distinction because nonpsychoactive metabolites do not measure impairment and only indicate that an individual has used cannabis at some point in the weeks prior to testing. Thus, nonpsychoactive cannabis constituents such as Cannabidiol (CBD), could likely become a more popular and widespread alternative for those previously abstaining from all cannabis use due to employer testing.

AB 2188 is significant to the landscape of California's anti-discrimination laws because it is the first time cannabis is being introduced into the realm of employment in California. AB 2188 is also significant because by being incorporated into FEHA, it is the first time employees and employers will discuss cannabis in conjunction with the term "discrimination," which would previously trigger considerations of race, sex, religion, age, and other protected classes currently under the Act. Now, just as any of the aforementioned protected classes are afforded various protections from discrimination, so too is someone's status as an off-the-job recreational cannabis user. This means that like traditional FEHA discrimination cases, employers could be hit for attorneys' fees and other costs typically guaranteed under FEHA claims if they are found in violation of the law.

No Room for Personal Ideologies of Employers

Historically, being a private entity allowed employers to maintain certain policies that were sequestered from general state policy, including their private policies and prohibitions on employee drug usage, but that is also why AB 2811 is so groundbreaking - private, recreational cannabis usage is the first category under FEHA that now makes it illegal for even private employers to discriminate against an employees' actions, hobbies, or personal activities, i.e. cannabis use, versus inherent characteristics traditionally protected under FEHA. Now, with the addition of Section 12954, employers will be forced to set aside personal or moral beliefs regarding the controversial use of recreational cannabis or suffer the same legal consequences as when discriminating against an employee based on race, sex, age, or other protected characteristics. The only employers that are exempt under Section 12954 are nonprofit religious associations and nonprofit religious corporations.

Section 12945 Not a Pass to Show Up to Workplace Impaired

Despite its widespread protections for employees, the Legislature was sure to prevent AB 2188 from disrupting the intent of drug testing for employers, which it recognized as an employers' ability to identify employees that may be impaired on the job. Moreover, AB 2188 does not preempt state or federal 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. In fact, the Legislature essentially gave employers the "thumbs up" to take advantage of new and developing technology that specifically tests for impairment rather than the actual presence of the substance. With this, there may be future challenges to the law where "impairment" does not have quantifiable or measurable limits set by employers. However, such may become obvious if an employee is unable to carry out their basic functions or is performing substantially less efficiently than once perceived.

Employers can therefore still protect the workplaces since AB 2188 cannot affect the rights or obligations of an employer to maintain a drug-and alcohol-free workplace under California Health and Safety Code Section 11362.45, or by federal law or regulation. Thus, employees should still think twice before partaking in cannabis in close proximity to their shift or while on the job.

Few Trade Exceptions

Employees in the building or construction trades are explicitly not protected under Section 12945, likely for the obvious reason of ensuring employee and patron safety in inherently dangerous work environments when it would be unfeasible to test each employee for psychoactive metabolites at the beginning of each shift. The law also does not apply to employees in positions requiring a federal background investigation or clearance in accordance with regulations issued by the United States Department of Defense.

Employers have approximately one year to explore alternative testing tools that only measure impairment, and to develop a working definition of "impairment" from cannabis usage that is punishable in the workplace without offending the new regulation.

In sum, to employees, don't take advantage of this law with your employer, and to employers, beware not to discriminate. After all, two wrongs don't make a right, but two lefts will take you to the dispensary by my house!

This is the first column to appear in what will be a monthly Torts Illustrated series that will run on the last Monday of the month.