California Bill Proposes to Prohibit Employment Discrimination Against Marijuana Users

A invoice just lately launched within the California Meeting proposes to ban discrimination towards staff who use hashish off the job.

The laws, Meeting Invoice (AB) No. 2188, would amend California’s employment antidiscrimination regulation, the Truthful Employment and Housing Act (FEHA), and make it an illegal apply for an employer to discriminate towards an grownup applicant or worker based mostly upon the “particular person’s use of hashish off the job and away from the office.” AB 2188 would additionally stop discrimination towards an applicant or worker who fails a drug take a look at detecting “nonpsychoactive hashish metabolites of their urine, blood, hair, or bodily fluids.”

The invoice wouldn’t allow an worker “to be impaired by, or to make use of hashish on the job” or have an effect on “the rights or obligations of an employer to take care of a drug and alcohol-free office, as laid out in Part 11362.45 of the Well being and Security Code.” (Hyperlink added.)

AB 2188 contains carveouts for the constructing and building trades, federal contractors, federal funding recipients, or federal licensees required to take care of drug-free workplaces. Its provisions additionally exclude occupations which can be required by federal or state legal guidelines to be examined for managed substances.

If enacted, AB 2188 could be the primary California regulation offering office safety to customers of hashish.

California’s Proposition 215 legalized the medical use of marijuana in 1996. The regulation didn’t present office protections for off-duty, off-premises medical marijuana use. In 2008, in Ross v. RagingWire Telecommunications, Inc., the Supreme Courtroom of California decided {that a} disabled particular person who used medical marijuana was not protected beneath the FEHA.

In 2016, California voters authorised Proposition 64, which legalized the leisure use of marijuana. Proposition 64 purported to depart employers’ office rights undisturbed. The legislative initiative said that its goal and intent, amongst different targets, was to “[a]llow private and non-private employers to enact and implement office insurance policies pertaining to marijuana.” The initiative additionally supplied that nothing in it will be “construed or interpreted to amend, repeal, have an effect on, prohibit, or preempt … [t]he rights and obligations of private and non-private employers to take care of a drug and alcohol free office.”

The California Chamber of Commerce opposes AB 2188. In an April 23, 2022, letter revealed on its web site, the CalChamber said its considerations:

AB 2188 … outlaws using metabolite-based testing for marijuana by making any self-discipline based mostly on a metabolite take a look at a violation beneath FEHA. We’ve got considerations concerning the feasibility and price of the choice assessments pushed by AB 2188—particularly, saliva and impairment-based testing. These assessments are comparatively new, and we’re involved about their reliability in figuring out marijuana use. As well as, now we have considerations with the efficacy of saliva-based testing for marijuana consumed in an edible kind.

The CalChamber additionally raised considerations within the letter that AB 2188, if enacted, would restrict or eradicate preemployment testing for marijuana and make office self-discipline for cheap suspicion impairment harder and topic to litigation.

AB 2188 is presently beneath committee assessment within the California Meeting. The invoice might want to move each homes of the California Legislature earlier than it lands on the governor’s desk. The governor has till September 30, 2022, to signal or veto payments.