Assembly Bill 2188 (AB 2188) states that "it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person's use of cannabis off the job and away from the workplace." This prohibition also extends to "employer-required drug screening test[s] that [have] found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids." Use can be determined by a positive drug test result for the presence of the carboxy THC metabolite, an inactive byproduct of THC that may be present in a urine sample for up to 100 days post-abstinence. The United States Department of Justice cited that detection of this metabolite "only indicates that a particular substance is present in the test subject's body tissue. It does not indicate abuse or addiction; recency, frequency, or amount of use; or impairment."

The law goes into effect January 1, 2024 and mirrors those already enacted in several other adult-use states, including Connecticut, Montana, New Jersey, New York and Rhode Island.

Employers are encouraged to review these new laws to determine if and how business practices may be impacted. Please contact your account management team with questions specific to these changes and your current background screening program.

Posted: September 29, 2022