California expands FEHA to include cannabis use outside of work | Sheppard Mullin Richter & Hampton LLP

Virtually all California employers with five or more employees are covered by the Fair Employment and Housing Act (FEHA), the state’s most notable civil rights law. FEHA protects and guarantees the right and opportunity of all people to seek, obtain and hold employment without discrimination by establishing a comprehensive program to combat discrimination in employment.

It currently prohibits covered employers from discriminating against any person with respect to nearly all terms, conditions and privileges of employment based on any of the following: race, religious belief, color, national origin, ancestry, physical disability or mental illness, physical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

With the passage of Assembly Bill 2188, which adds Section 12954 to the Government Code, California lawmakers have included another protected category in this list: off-duty and off-site cannabis use. In addition, the new law amends FEHA to prohibit employers from taking action based on traditional drug testing methods.

In the new law, the legislature finds and declares that tetrahydrocannabinol (THC) – the psychoactive chemical compound of cannabis – is stored in the body as a non-psychoactive metabolite of cannabis after being metabolized. The law further states that these metabolites do not indicate tampering, only that an individual has consumed cannabis within the last few weeks.

Currently, according to the Legislature, the intent of job-related drug testing is to identify employees who may be intoxicated or under the influence of THC in a workplace. . However, most cannabis drug tests tend to only show the presence of non-psychoactive cannabis metabolites that have no correlation with the current taint. Additionally, the Legislature observed that because the science has improved, alternative drug tests that better correlate with impairment are more readily available and do not rely on the presence of non-psychoactive cannabis metabolites. to identify the presence of recently consumed THC.

AB 2188 aims to address this perceived disconnect. In particular, the bill amends FEHA to make it illegal for an employer to discriminate against any person in hiring, firing, or any term or condition of employment, or to penalize any person from another. manner, if the discrimination is based on the person’s “cannabis use”. out of work and away from the workplace. But this rule would not prohibit an employer from discriminating in hiring or in any term of employment based on “scientifically valid pre-employment drug screening conducted by methods that do not detect not the non-psychoactive metabolites of cannabis”.

In addition, FEHA will now prohibit employment discrimination or any condition of employment based on an employer-required drug test that revealed the person had non-psychoactive cannabis metabolites in their hair or hair. bodily fluids.

In any event, Government Code Section 12954 does nothing to permit an employee to possess, be intoxicated, or use cannabis while on the job, or to affect the rights or obligations of an employer to maintain a drug and alcohol free workplace.

The new part of FEHA created by AB 2188 does not apply to (1) employees in the “building and construction trades” or (2) applicants or persons hired for positions requiring a government background investigation federal or security clearance. The new law also does not override state or federal laws requiring individuals to be tested for controlled substances or as a condition of federal funding or licensing benefits.

AB 2188’s changes to FEHA will come into effect on January 1, 2024. Once in effect, they will significantly change how and when employers can test employees for cannabis, and what they can do with those results. Employers can consider reviewing existing hiring, discipline and firing policies and practices now to ensure they are in line with the coming into force of the law. In addition, employers who use pre-employment drug testing will need to identify and procure compliant testing methods in order to continue pre-employment testing under the new requirements. Employers should consult with their labor and employment lawyer to ensure they are ready, able and ready to comply with the new law once it takes effect.