Skip to content New Recreational Cannabis Use Protections for Employees Under FEHA


Search Publications

November 2022

New Recreational Cannabis Use Protections for Employees Under FEHA

Beginning January 1, 2024, California will implement a new safeguard and right for employees who use recreational cannabis. Assembly Bill No. 2188 adds recreational cannabis use to the list of protected employee rights under the California Fair Employment and Housing Act ("FEHA"). It pertinently states: 

It 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 any of the following: 
    (1) The person’s use of cannabis off the job and away from the workplace.
    (2) An employer-required drug-screening test has found the person to have non- psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

While this new addition will likely be celebrated by many employees, AB 2188 creates additional procedural hurdles for employers who must now be wary of their current drug testing policies which may run afoul of this new law. 

Advances in drug test technology spurred the introduction of AB 2188 as employers can now drug test for only the psychoactive effects of Tetrahydrocannabinol ("THC"), the chemical compound responsible for impairment in cannabis. Previously, employees were not protected against adverse employment actions if they tested positive for either nonpsychoactive or psychoactive metabolites of THC; but now, employers may not discriminate against an individual if nonpsychoactive cannabis metabolites are found in their hair, blood, urine, or other bodily fluids. 

However, AB 2188 blatantly excludes cannabis use on the job and at the workplace. If an employee is found using cannabis or found to be presently impaired by cannabis, they are not protected under FEHA. No provision in AB 2188 will subjugate an employer’s duty to maintain a drug and alcohol-free workplace under California Health and Safety Code § 11362.45. Additionally, AB 2188 carves out exceptions for employees in the building and construction trades, and positions that require federal government background investigation or security clearance. The bill does not preempt state or federal laws that require employees to be tested for controlled substances as a condition of their employment, for the employer to receive federal funding or federal licensing-related benefits, and for employers entering into federal contracts. Employers are free to continue testing employees in the same manner used previously but must ensure no adverse employment action is taken against an employee for the presence of nonpsychoactive metabolites found in any test. 

Practical Concerns for Employers

While AB 2188 does not become operative until January 1, 2024, employers should consider altering their policies and procedures to indicate the introduction of this new employee right when it becomes operative in 2024. Employers should begin revising their employee handbooks, offer letters, and internal policies respectively. While how an employer conducts drug testing of its employees need not change, employers need to be mindful of the results they scrutinize when deciding to take any adverse employment action against a prospective or current employee who tests positive for nonpsychoactive cannabis metabolites as it may expose the employer to liability. Each employer should also closely monitor their own business’ entwinement with federal or state laws that are excluded from AB 2188. 

Despite AB 2188, employers must consistently be cognizant that no employee is presently impaired by cannabis during work, or using cannabis at their brick-and-mortar facilities. Each employer’s particular needs and circumstances will dictate a different outcome and any changes to company policies on this issue should be addressed with the assistance of experienced counsel. 

Please feel free to reach out to your trusted employment counsel or the authors for more information.

Employment Law

Brandon D. Saxon

Employment Law