AB 2188 says employers can no longer test employees for non psychoactive chemicals found in marijuana.

Question

My employer has stated that they will still test for non psychoactive chemicals found in marijuana through a urinalysis if they decide there is just cause. EX: “Employee has red eyes” or “There was an accident in the work place.” I can’t find any literature in the bill that states these actions are abiding by California law. Is this legal?

James L. Arrasmith · Answer

To answer this question accurately, we need to examine AB 2188 and its implications for workplace drug testing in California. Here's an analysis of the situation: 
 
1. AB 2188 Overview: 
AB 2188, which went into effect on January 1, 2024, amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against employees or job applicants based on their off-duty cannabis use. 
 
2. Key provisions: 
- Employers cannot discriminate against employees or applicants based on their use of cannabis off the job and away from the workplace. 
- Employers are prohibited from testing for non-psychoactive cannabis metabolites in an employee's hair, blood, urine, or other bodily fluids. 
 
3. Exceptions: 
- The law does not apply to employees in the building and construction trades. 
- It doesn't prevent employers from maintaining a drug-free workplace or prohibiting employees from being impaired at work. 
- Employers can still test for THC, the psychoactive component of cannabis. 
 
4. Your employer's stance: 
Based on the information provided, your employer's stated policy of testing for non-psychoactive chemicals found in marijuana through urinalysis, even with "just cause," appears to be in conflict with AB 2188. 
 
5. Legal analysis: 
- AB 2188 specifically prohibits testing for non-psychoactive cannabis metabolites, which are typically what urinalysis tests detect. 
- The law doesn't provide exceptions for "just cause" testing based on red eyes or workplace accidents. 
- Employers can still test for current impairment using methods that detect THC, but not for non-psychoactive metabolites. 
 
6. Conclusion: 
Your employer's stated policy of testing for non-psychoactive chemicals through urinalysis, even with perceived just cause, appears to be in violation of AB 2188. The law does not provide exceptions for the scenarios your employer described. 
 
However, it's important to note that: 
- Employers can still prohibit cannabis use or impairment during work hours. 
- They can test for THC to determine current impairment. 
- They can take action if an employee is impaired at work. 
 
If your employer proceeds with this policy, they may be at risk of violating California labor law. Employees subjected to such testing might have grounds for a discrimination claim under FEHA. 
 
For the most accurate and up-to-date legal advice specific to your situation, it would be best to consult with an employment lawyer in California who specializes in cannabis law and workplace rights.

Q: AB 2188 says employers can no longer test employees for non psychoactive chemicals found in marijuana.