California – AB 2188 – Passed – 09/19/22 – Amends the California Fair Employment and Housing Act to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace or if employer-required drug screening test has found cannabis metabolites in their urine, hair, or bodily fluids. Exceptions exist for employees who are impaired on the job, tests that detect “the active presence of THC in the employee’s or prospective employee’s system,” employers who are required by federal law to test for cannabis, and employers who would lose a federal funding or federal licensing-related benefit.
Regarding obligations and rights related to drug testing in California (CA), give high attention to CA case decisions as well as variances within municipalities (e.g., San Francisco).
(California Rec. 11362.45) This cited section does not change these employer rights and obligations, “… of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.”
(California Rec. 11362.785) “Nothing in this article shall require any accommodation of medicinal use of cannabis on the property or premises of a place of employment or during the hours of employment …”
Although there is no specific drug testing law for private employers in California, in general because of case law decisions, an experienced, state-specific attorney should be involved before implementing drug testing related policies and programs.
California has a state constitution that includes a right to privacy which has implications to an employer’s drug testing operations.
(California Rec. 11362.45) This section does not affect, “… the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees or prevent employers from complying with state or federal law.”
Employers may terminate employees who test positive for marijuana even if use was off-duty and for a medical condition with a valid medical marijuana card.
See Significant above.
Smoking is permitted for ingestion but not in public places.
See Significant above.
Other Impacting Laws
(e.g., drug testing, workers’ compensation, unemployment)
California – AB 2188 – Passed – 09/19/22 – Amends the California Fair Employment and Housing Act to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace or if employer-required drug screening test has found cannabis metabolites in their urine, hair, or bodily fluids.
An employee is disqualified from unemployment benefits if s/he was discharged for, (Cal. Unemp. Ins. Code sec. 1256.4) “…chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages…” or, otherwise left employment for, “…reasons caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages.”
An injury is not qualified for workers’ compensation benefits when the injury is caused by intoxication, by alcohol or the unlawful use of a controlled substance (with the same meaning as prescribed in Section 11007 of the Health and Safety Code), by the injured employee.
(California Rec. 11362.785) “This article does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis.”
This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.
Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).
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