California Drug Testing Laws: New Bill Protects Workers Who Get High Off-the-Clock

Beginning January 2024, a new California law will prohibit employers from penalizing or discriminating against employees who use cannabis outside of work and while off the clock. The change marks a massive shift for California drug testing laws.

Governor Gavin Newsom signed Assembly Bill 2188, amending the California Fair Employment and Housing Act. The amendment includes language banning any discrimination toward cannabis consumers coupled with existing employment protections that bar any employer from discriminating against applicants based on medical disability, race, age, or other protected statuses.

AB 2188 makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person.” 

Drug tests commonly used by employers will not be used to terminate a worker or restrict hiring because these tests only indicate the presence of cannabis—not when the drug was last used or whether it affects job performance. Because cannabis stays in your system for up to 30 days (or longer for hair follicle testing).

Any employer with a workplace drug policy needs to review and update immediately and inform staff of the new policy language before the law goes into effect. The law does not allow employees to show up to work impaired or consume while on the job or during the work day, so employers may still enforce a drug-free workplace. It only protects workers when they are not clocked in or during their agreed-upon working hours. 

The new law’s protections do not apply to applicants or employees who are required, as a condition of employment, to be tested prior to receiving federal funding or licensing-related benefits. Those employees who are subject to federal background checks because of the nature or sensitivity of their jobs may be exempt from this law.

Supporters of this bill are hopeful that drug testing for THC and its metabolites will become a remnant of past cannabis prohibition or that standard drug testing will be viewed differently. Instead of urine drug testing (the most common method chosen by employers), oral swab testing will be used in its place. Urine testing can detect THC metabolites for up to 30 days after the last use, while mouth swab testing has a detection window of only hours or up to one day. It is most suitable for determining if someone is currently impaired. 

This is a big win for California employees, especially considering that California is home to the largest cannabis industry in the world. Hopefully, other states will follow their lead and adopt similar laws on the path toward federal legalization.