Impact and Implications of AB 2188 in the California Workplace

  • By: Andrew David Easler, Esq.
  • Published: Sep, 30 2023
  • Updated: Nov, 4 2023

AB 2188, a landmark piece of legislation in California, marks a progressive step in the legal landscape surrounding employee rights and cannabis use. Coming into effect on January 1, 2024, this law is an extension of the protections embedded in the California Fair Employment and Housing Act. It is emblematic of a broader societal shift, acknowledging the nuances associated with cannabis use while ensuring the integrity and safety of the workplace remain paramount.

This law sets boundaries for employees to use cannabis, offering protections for off-duty use while ensuring that workplace safety and productivity are not compromised. Employers are prohibited from unfair discriminatory practices or penalties based on an employee’s responsible use of cannabis outside the workplace. The legislation also addresses the shortcomings of traditional drug tests that detect nonpsychoactive cannabis metabolites, emphasizing that their presence doesn’t indicate on-the-job impairment.

Despite these progressive steps, AB 2188 has tried to balance individual liberties with organizational and societal obligations. It underscores that these protections don’t extend to on-the-job cannabis use or impairment. Employers retain the authority, backed by law, to enforce stringent drug and alcohol-free workplace policies, ensuring that professional environments are characterized by safety, efficiency, and legal compliance.

AB 2188 also tried to be considerate of federal mandates and specialized industry requirements. Exemptions are woven into the law to accommodate positions subject to federal background checks or integral to the building and construction trades. These exemptions underline a harmonized approach, where state-level legal innovations coexist with and respect federal legal frameworks and industry-specific needs.

As California approaches 2024, AB 2188 stands poised to ignite significant transformations across employment, legal interpretation, and societal perspectives on cannabis use. It reflects the state’s progressive stance, where scientific research, legal wisdom, and evolving societal values converge.

AB 2188 paints a picture of a future where laws, company rules, and personal freedoms unite to create a fair and welcoming workplace for everyone. This law highlights California's promise to build a work environment that combines following the law, effective company management, and respect for everyone’s choices and rights in a balanced way. It means every part, from legal rules to personal freedoms, is considered, ensuring the workplace is fair, respectful, and includes everyone.

Summary of Cases and its Implications on AB 2188

The legal narrative surrounding cannabis use and the workplace is rich and dynamic. Various case laws contribute to the framework within which AB 2188 is situated. Each case offers unique insights, highlighting the ongoing evolution of legal, ethical, and societal norms around cannabis use. Here, we delve into some pivotal cases and explore their implications for AB 2188.

Ross v. RagingWire Telecommunications, Inc. (2008)

In the 2008 case, Ross v. RagingWire Telecommunications, Inc., the California Supreme Court dealt with a conflict between employment practices and medical cannabis use. Gary Ross, a patient under California’s Compassionate Use Act, was terminated from RagingWire Telecommunications due to a positive cannabis test during pre-employment screening, despite informing the employer about his legal medical cannabis use.

Ross sued, alleging discrimination under the California Fair Employment and Housing Act (FEHA). However, the court sided with the employer, highlighting that the Compassionate Use Act didn’t extend to workplace protections and employers weren't required to accommodate medical cannabis use, given its federal illegality.

This ruling underscored a significant gap between state and federal cannabis laws. Employers maintained the right to enforce strict drug policies. However, the introduction of AB 2188 indicates a legal evolution, offering protections to employees for off-duty cannabis use, marking a shift from the principles upheld in Ross v. RagingWire, and illuminating the evolving legal landscape of cannabis use in employment contexts in California.

The landmark decision in Ross v. RagingWire Telecommunications, Inc. (2008) carved out a significant legal precedent that underscored the absence of employment protections for medical marijuana patients, a scenario that AB 2188 is designed to address. The court's ruling in favor of the employer highlighted a stark gap in the legal landscape, wherein state-sanctioned medical cannabis use was not safeguarded against strict workplace drug policies. Consequently, this catalyzed a legal evolution culminating in the development of AB 2188. The new law signals a pivot from the principles upheld in the Ross case, advancing towards an inclusive legal framework that encapsulates protections for employees’ off-duty cannabis use while ensuring a balance between workplace safety and federal legal standards. In essence, AB 2188 can be seen as a legal response to the complexities and challenges illuminated by the Ross decision, marking a significant stride in the evolving legal landscape of cannabis use in employment contexts in California.

Expanding on Coats v. Dish Network (2015)

In the 2015 case, Coats v. Dish Network, the Colorado Supreme Court was tasked with resolving a dispute that underscored the intricate relationship between federal and state laws in the context of medical cannabis use and employment. Brandon Coats, a registered medical marijuana patient, was dismissed from Dish Network following a positive test for THC, despite his usage being entirely off-duty and legal under Colorado state law.

Coats challenged his termination in court, citing Colorado's lawful off-duty activities statute that seeks to protect employees from being dismissed for engaging in legal activities during their personal time. However, the court ruled in favor of Dish Network, emphasizing that for an activity to be considered "lawful," it must adhere to state and federal statutes.

Given that cannabis, including its medical use, remains illegal under federal law, the court concluded that Coats’ off-duty use of medical marijuana did not constitute a “lawful activity” protected under Colorado’s employment statute. Consequently, Dish Network’s decision to terminate Coats’ employment stood the legal test.

The ruling in Coats v. Dish Network echoes the complex and often contentious interplay between state-level cannabis legalization and persistent federal prohibition. It underscores the precarious legal terrain that employees who use cannabis for medicinal purposes must navigate, marked by the juxtaposition of state protections and federal prohibitions.

The Coats v. Dish Network (2015) case has pronounced impacted the formation and nuances of AB 2188. Coats v. Dish Network illuminated the intricate tension between state and federal laws regarding cannabis use, employment, and employee rights. The case, which involved an employee’s termination due to off-duty, legal (at the state level) cannabis use, showcased the precarious legal ground employees tread when their off-duty and lawful cannabis use under state law conflicts with federal prohibition. It underscored a complex landscape where state autonomy and federal oversight intersect. AB 2188 is, in part, a response to these complexities, seeking to delineate a clear, balanced path that respects individual rights to off-duty cannabis use while incorporating necessary exceptions for federally regulated positions and industries, thereby reflecting a harmonized approach to the multifaceted legal and ethical challenges showcased in Coats v. Dish Network.

Whitmire v. Wal-Mart Stores Inc. (2020)

In the 2020 case, Whitmire v. Wal-Mart Stores Inc., the discourse surrounding cannabis use and employment rights was again thrust into the legal limelight. Carol Whitmire, an employee at Walmart and a registered medical marijuana patient in Arizona, was terminated following a positive drug test for cannabis. Whitmire’s consumption was legal and compliant with state law and entirely conducted during off-duty hours.

Whitmire filed a lawsuit, claiming wrongful termination and discrimination, given that her cannabis use was legal and medicinal and did not impair her work performance. This case navigated the intricate corridors of Arizona’s medical marijuana laws and employers’ rights to enforce drug-free workplace policies.

In a significant ruling, the court sided with Whitmire. The judgment underscored the inability of Walmart to demonstrate that Whitmire was impaired at work conclusively. It departed from the traditionally employer-favored outcomes in similar cases and highlighted a shifting legal terrain where state laws endorsing medical marijuana use were gaining traction.

This case reaffirmed the contention that legal, off-duty cannabis consumption, especially for medicinal purposes, should not automatically warrant employment termination. It underscored the need for a nuanced, balanced approach that respects state law, employee rights, and workplace safety imperatives.

In the context of AB 2188, the Whitmire case resonates profoundly. It underscores the evolving legal and societal norms that inform the legislation. AB 2188 is emblematic of a legal ecosystem that seeks to balance employee rights to consume cannabis off-duty, especially for medicinal purposes, with the employers’ mandate to ensure a safe, productive, and legally compliant workplace.

The law mirrors the legal ethos reflected in Whitmire v. Walmart, embracing a future where off-duty, legal cannabis consumption is acknowledged and protected without compromising workplace integrity. It reflects a harmonized approach, marking a significant evolution from rigid, zero-tolerance policies and moving towards a landscape of inclusivity, legal adherence, and respect for individual rights. Each clause of AB 2188 is imbued with lessons from cases like Whitmire, reflecting a contemporary, balanced, and enlightened approach to cannabis use and employment rights in California.

Local Ordinances in California Regarding Cannabis and the Workplace

Local governments in other parts of the state also play a crucial role. Some counties have opted for stricter regulations, limiting the number of cannabis-related businesses or imposing stricter zoning laws. Each locality’s approach reflects the diversity of opinions and attitudes towards cannabis within the state.

Local ordinances in California play a pivotal role in shaping the landscape of cannabis use and the workplace. These laws or regulations passed by local governments, such as cities and counties, often serve to refine further or add context to state-level legislation. In the context of cannabis use, different localities within California have passed ordinances to address specific issues related to both recreational and medical cannabis use.

San Francisco and Berkeley

For instance, cities like San Francisco and Berkeley are notable for their progressive stances. These cities have established ordinances that restrict drug testing in various ways, offering added protection to employees. In San Francisco, local laws strongly advise against non-DOT (Department of Transportation) testing unless there is documented reasonable suspicion.

Los Angeles

Los Angeles, another major city, has its own rules regarding cannabis businesses, focusing primarily on licensing, taxation, and location regulations. While not directly impacting workplace drug testing, these ordinances affect the overall atmosphere and accessibility of cannabis in the city.

Interaction with AB 2188

The existence of these local ordinances doesn't negate or override the impacts of AB 2188 but adds another layer of complexity. Employers and employees must navigate state and local laws to understand their rights and obligations fully. Employers, especially, must ensure that their policies comply with state law and the specific regulations of the city or county in which they operate.

Comparative Analysis with Other States

As California embarks on this journey, it is not alone. Several states are navigating similar terrains, balancing employee rights and workplace safety amidst changing societal norms.

New York

In New York, the Marijuana Regulation and Taxation Act prohibits employers from discriminating against employees based on off-duty cannabis use. However, like California, it upholds the employer’s right to maintain a drug-free workplace, drawing a fine line between personal freedom and organizational integrity.

Nevada

Nevada has also pioneered employee protections with Assembly Bill 132, which prohibits denying employment due to the presence of cannabis metabolites in pre-employment drug screenings. It represents another stride towards reconciling individual liberties with workplace exigencies.

New Jersey

In New Jersey, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMM) mirrors this trend. It prohibits adverse actions against employees based on off-duty cannabis activities while ensuring workplace safety is not compromised.

Testing Protocols and Legal Provisions

California law permits various drug testing methods, including instant or POCT testing, drug panels, and tests for oral fluids and hair, albeit with specific recommendations and restrictions. Employers are encouraged to utilize trained collectors and SAMHSA-certified laboratories to ensure accuracy and reliability in drug testing. Random testing is particularly sensitive and limited to safety-sensitive workers to balance privacy rights and safety concerns. Employers are encouraged to define "safety-sensitive positions" in company policies and ensure their testing programs align with legal and ethical standards.

Drug Testing Issue Status Comments
Instant or POCT Testing Yes, but with caution Employ trained collectors and forward all non-negatives to the laboratory for verification
Drug Panels No Restrictions  
Laboratory Licensing requirements Mandatory use of licensed laboratories; Strongly recommend SAMHSA-certified facilities.
Medical Review Officer (MRO) Not Required Strongly advised for risk mitigation and liability reduction.
Random Testing Restrictions Limited to safety-sensitive personnel only.
Post-Accident No Restrictions Encourage its utilization when reasonable suspicion exists.
Reasonable Suspicion No Restrictions Suggested under the supervision of a trained supervisor.
Oral Fluids No Restrictions  
Hair Testing No Restrictions  
Unemployment Denial Yes, address in workplace policy Incorporate Unemployment Insurance Code §1256.4(a)(1) & (2) into your drug-free workplace policy, stating that refusal to test or a positive result constitutes misconduct, with employment termination as a consequence.
Workers Comp Discount No  
Intoxication Defense Yes In accordance with Labor Code §3600(a) & (a)(4), emphasize that any injury or fatality resulting from employment will not be eligible for compensation if attributed to the employee's intoxication in your workplace policy.
Medical Marijuana Yes State clearly in your policy that accommodation for medical marijuana use is not mandated on the property or during employment hours, as per relevant regulations.
Recreational Marijuana Yes As of November 2016, the law safeguards employers with drug-free workplace policies that forbid employee marijuana usage.
Report Driver DOT Positives Yes California mandates that Medical Review Officers (MROs), Breath Alcohol Technicians (BATs), and Third-Party Administrators (TPAs) must report all positive Department of Transportation (DOT) drug and alcohol tests, where the Blood Alcohol Concentration (BAC) exceeds 0.04, conducted on a California Commercial Driver's License (CDL) holder to the California Highway Patrol. These reports should not contain individual test identification information, and there is no specific reporting form provided for this purpose.
General Statute N/A While there may not be a general statute, several instances of case law have established precedents in this regard.

Transition in Pre-Employment Screening

The interplay between legal shifts and pre-employment screening protocols is evident as new legislations like California’s AB 2188 emerge. This law symbolizes a pivot from stringent anti-cannabis employment practices to a more nuanced approach that respects legal and individual boundaries. Before AB 2188, pre-employment drug screenings often served as unequivocal determinants in hiring decisions, and a positive test for cannabis could lead to immediate job offer retractions. However, AB 2188 has restructured this narrative, stipulating that job applicants cannot be rejected solely based on the presence of nonpsychoactive cannabis metabolites in their system.

This legal evolution is redefining the boundaries of pre-employment screenings. Employers are now mandated to balance respect for individuals’ legal rights to consume cannabis off-duty with the imperative to maintain a safe and productive workplace. Job applicants are expected to benefit from increased fairness and transparency in hiring processes, fostering an environment where legal off-duty cannabis use is distinguished from on-the-job impairment.

This transition is not without its complexities. Employers are tasked with aligning their hiring protocols with the evolving legal landscape, which is marked by a continuous dialogue and often tension between state and federal laws. As we step into this redefined space, the evolution of pre-employment screening is not just a response to legal changes but is also a participant in the unfolding dialogue shaping the future interconnection of cannabis use, individual rights, and employment in the United States. The adaptability and responsiveness of legal frameworks and corporate practices are crucial in navigating this dynamic terrain.

Preparing for 2024 and Beyond

The implementation of AB 2188 necessitates a proactive and strategic approach from employers, employees, and legal professionals alike. As 2024 approaches, organizations need to reassess and recalibrate their drug and employment policies to align with the new legal mandates. This includes a comprehensive review of pre-employment screening processes, distinguishing between on-the-job impairment and off-duty legal cannabis use.

Employers should be poised to systematically review their current policies, focusing on the adaptability and responsiveness to the legal changes embodied in AB 2188. This might include the integration of more nuanced drug testing methods that can differentiate between active THC impairment and the presence of nonpsychoactive cannabis metabolites, ensuring compliance with the law’s provisions.

Training and education will be paramount. Employers should consider initiating training programs for HR professionals and managers. These programs should instill a nuanced understanding of the legal changes, the implications for workplace policies, and the strategies for balancing employee rights, workplace safety, and legal compliance.

Legal professionals are also gearing up for a new era where the intersection of employment law and cannabis use is expected to be intricate and dynamic. Keeping abreast of legal developments, court rulings, and emerging trends will be crucial. They will play a pivotal role in guiding organizations through the legal nuances, ensuring that workplace policies are compliant, equitable, and respectful of individual rights.

For employees, the new law signifies an era where their rights to legal, off-duty cannabis use are recognized and protected. However, it also calls for an informed approach, where understanding the boundaries of these legal protections and the expectations for workplace conduct is crucial.

As California and other states with similar legal trajectories step into 2024 and beyond, the interplay between cannabis use, employment, and the law is set to be characterized by continuous evolution. All stakeholders' adaptability, preparedness, and collaboration will be at the forefront of navigating this unprecedented and dynamic landscape.

We are an education company, not a law firm. The information and content we provide is for general informational purposes only and does not constitute legal advice. We make no representations, warranties, or guarantees regarding the accuracy, completeness, or applicability of the content. It is important to always consult with a qualified attorney for specific legal counsel pertaining to your individual circumstances.

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