Bill Text: CA AB2188 | 2021-2022 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Discrimination in employment: use of cannabis.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2022-09-18 - Chaptered by Secretary of State - Chapter 392, Statutes of 2022. [AB2188 Detail]

Download: California-2021-AB2188-Amended.html

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Amended  IN  Assembly  April 07, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 2188

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Introduced by Assembly Member Quirk

February 15, 2022

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An act to add Section 12954 to the Government Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

AB 2188, as amended, Quirk. Discrimination in employment: use of cannabis.

Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. The act prohibits various forms of employment discrimination and empowers the Department of Fair Employment and Housing to investigate and prosecute complaints alleging unlawful practices.

This bill would amend the act to also make it 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 or, with prescribed exceptions, or upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids. The bill would specify that those provisions do not apply to employees in the building and construction trades, and do not preempt state or federal laws requiring employees to be tested for controlled substances.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 The Legislature finds and declares both of the following:

(a) Tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.

(b) The intent of drug tests is to identify employees who may be impaired. While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.

(c) As science has improved, employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites. These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.

SEC. 2.

 Section 12954 is added to the Government Code, to read:

12954.

 (a) Notwithstanding Section 12940, it 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 any of the following:

(1) The person’s use of cannabis off the job and away from the workplace.

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids, except as provided in subdivisions (c) and (d). fluids.

(b) Nothing in this section permits an employee to be impaired by, or to use, cannabis on the job. job, or affects the rights or obligations of an employer to maintain a drug and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code.

(c) This section does not apply to employees in the building and construction trades.

(d) This section does not preempt state or federal laws requiring employees to be tested for controlled substances, including laws requiring employees to be tested as a condition of receiving federal funding or federal licensing-related benefits.

(c)(1) Nothing in this section shall prohibit an employer or prospective employer from administering a performance-based impairment test, or prohibit an employer from terminating the employment of, or taking other corrective action against, an employee who is determined to be impaired by cannabis on the property or premises of the place of employment or during the hours of employment, on the basis of a performance-based impairment test.

(2)Nothing in this section shall prohibit an employer or prospective employer from administering a blood, oral fluid, breath, or other chemical test that detects the active presence of THC in the employee’s or prospective employee’s system, or prohibit an employer from terminating the employment of, or taking other corrective action against, an employee who tests positive for the active presence of THC on the property or premises of the place of employment or during the hours of employment, on the basis of a blood, oral fluid, breath, or other chemical test.

(d)This section does not prohibit an employer from conducting a screening test for nonpsychoactive cannabis metabolites if any of the following apply:

(1)The employer is required to conduct that test by federal law or regulations, including Subpart F (commencing with Section 655.51) of Part 655 of Title 49 of the Code of Federal Regulations.

(2)The employer would lose a federal funding or federal licensing-related benefit for failing to do so.

(e)The rights and remedies under this section shall be in addition to and not in derogation of all other rights and remedies that a person may have under any other law, including any local ordinance.

(f)As used in this section, “THC” means the chemical compound tetrahydrocannabinol.