Marijuana law presents new challenges for California bosses

A law barring California businesses from penalizing or firing employees who use marijuana on their own time could present challenges for employers while workers are on the clock, a Sacramento attorney said.

Assembly Bill 2188, set to take effect Jan. 1., prohibits employers from discriminating against workers who are found to have traces of cannabis in their hair, blood, urine or other bodily fluids by a test that detects only whether an employee has consumed cannabis in recent weeks.

“You have to be able to test for current impairment — THC. And that’s still being fine-tuned by the pharmaceutical companies,” said Shelline Bennett, a labor and employment attorney with Liebert Cassidy Whitmore. “If someone is impaired during work, the only legal evidence we can currently use is a witness.”

And what if an employee is on a remote or hybrid work schedule?

“If someone is working from home it would be a lot easier for them to potentially smoke marijuana,” Bennett said. “This isn’t on the radar for most employers yet, partly because of the delay in implementation.”

A protected class

Authored by former Assemblyman Bill Quirk, D-Hayward, AB 2188 was signed into law by Gov. Gavin Newsom on Sept. 18 as a workplace anti-discrimination statute that amends the Fair Employment and Housing Act to protect off-duty, off-site cannabis use.

The bill promotes marijuana use to a protected class, on par with race, color, religion, sex, national origin or disability.

That doesn’t sit well with David Houston, who owns Barney’s Beanery restaurant/bar locations in Pasadena, West Hollywood, Burbank, Santa Monica and Westwood.

“I feel like we’ve swung from one direction where pot was viewed as a killer weed, to the other way, where it’s almost like a health food because of all the medicinal use,” he said. “And we have mandatory break times in California. Will someone be able to walk out of a business on their break — which could be off premises and on their own time — and smoke a joint and come back in?”

Houston has already experienced that kind of scenario with alcohol.

“I had a bartender who went out on the break, got blasted, came back in and couldn’t make the drinks,” he said. “We had to let her go.” 

Workplace policies, practices

Businesses have until Jan. 1 to update their policies, practices and procedures related to AB 2188 — not to mention training personnel for the changes.

“The challenge is to get all of these things up to snuff because remote and hybrid work is here to stay,” Bennett said. “And we don’t have many tests for current impairment, so pharmaceutical companies need to kick this into high gear.”

Saliva testing has a shorter window of detection — 24 to 48 hours — but the availability of that and similar quick-detection methods is limited, so the industry will need to ramp up production of the products to meet the expected demand, according to the California Chamber of Commerce.

“Our concern with AB 2188 isn’t with the science or the policy, it’s with the feasibility of the transition,” said Rob Moutrie, an attorney and policy advocate with CalChamber. “It’s the availability of testing and making sure businesses are aware of all this so they can start lining up their supplies. That takes time.”

Employers will still be able to pre-screen job applicants for drug use, but the testing will have to be done with a product that detects current marijuana use.

“Some testing companies believe their supplies are adequate, but things always seem to be that way until the huge demand comes, Moutrie said. “Our big concern is safety in the workplace.”

Legal action

AB 2188 does allow for some exceptions.

The bill doesn’t apply to employees in the building and construction trades or to applicants or employees hired for positions that require certain federal background checks and clearance.

But covered employees will be able to file complaints with the California Civil Rights Division (formerly the Department of Fair Employment and Housing) and bring legal action against employers who they claim violate AB 2188’s provisions.

“It sets out a process for enforcement of lawsuits,” Moutrie said. “Employers who penalize workers while continuing to use the older forms of testing next year could face lawsuits.”