The California Senate is considering a bill that would limit the ability of businesses to make adverse employment decisions based on a person’s off-hour use of cannabis. 

A.B. 2188 would require employers to use a test that proves a person was actually impaired by THC, the psychoactive component in cannabis. Many commonly used drug tests detect the presence of THC metabolites that indicate only that a person consumed cannabis sometime in the past and not that the person is impaired. 

If approved, the measure could effectively abrogate a 2008 state Supreme Court decision finding the ballot initiative voters approved five years earlier to allow medical use of cannabis did not address employment rights and only protected patients against criminal prosecution. 

AB 2188 would declare that it’s generally unlawful for an employer to discriminate against a person in hiring, termination and any term or condition of employment based on cannabis use outside of work hours and away from the workplace.  

The prohibition would not apply to employment decisions based on a “scientifically valid” preemployment drug test using methods “that do not screen for nonpsychoactive cannabis metabolites.” 

The bill would also make it an illegal employment practice to base decisions on employer-required drug tests that find a person had nonpsychoactive cannabis metabolites in their system. 

The prohibition in A.B. 2188 would not apply to people working in the building and construction trades or those working in positions that require federal background investigations. 

The bill would add cannabis protections to the section of the Government Code that’s often called the Fair Employment and Housing Act, as of Jan. 1, 2024. 

The United Food and Commercial Workers, Western State Council, said in support of the bill that common urine and hair tests can detect THC metabolites several weeks after a person last used cannabis and serve no value in determining whether one was under the influence at work. 

The union said employers would still be allowed to prohibit workers from coming to work high or to confirm someone is under the influence by using tests that detect active THC in bodily fluids such as saliva or blood. 

The California Chamber of Commerce said in opposition that cannabis use is not comparable to race, national origin and other characteristics that enjoy protected status and should not be included in the Fair Employment and Housing Act. 

This bill is currently up for a third and final vote in the Senate. If passed, the Assembly would have to vote again to concur on amendments made while the bill was in the Senate. 

The Assembly voted 42-23 to pass the bill in May. 

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