A new California law will soon protect most workers in the state who use cannabis off the clock — except for construction workers and some of them aren't happy about it.
Last year, Gov. Gavin Newsom signed Assembly Bill 2188, adding a section to the California Fair Employment and Housing Act, which bans various forms of employment discrimination.
Starting Jan. 1, it will be illegal for employers to discriminate against hiring, firing or punishing someone based on their use of cannabis when not working and away from the worksite.
Moving forward, employers can still test employees and potential employees for THC, the major psychoactive ingredient in cannabis that can indicate impairment. However, the law stops employers from discriminating against them if they test positive for non-psychoactive cannabis metabolites, or metabolized THC, found in hair, blood, urine and other bodily fluids.
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"These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks," the legislature found.
The legislation "does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances ... as a condition of employment, receiving federal funding or federal licensing-related benefits or entering into a federal contract."
Employers will keep their right to declare a drug- and alcohol-free workplace. This law does not allow workers to have, be impaired by or use cannabis on the job.
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Which employees will be exempt from AB 2188?
Federal employees and those who work in building and construction trades will not be protected under the new law.
This new law also doesn't apply for “those hired for positions that require federal background checks and clearance,” says Dominic Larson, a glazier, which is someone who specializes in installing different glass products.
Glazier Larson researched what’s coming. He’s been working in construction for 22 years and feels this discrimination law isn’t fair.
His field isn’t covered in the law but other safety-sensitive industries like truck-driving and healthcare are.
"Somehow a joint that I smoke at home is going to affect my job the next day, but not an Amazon driver? I just don't understand stuff like that," Larson said.
Employment attorney Bernard Alexander says there’s some gray area with the law. He says the first issue is that “impairment” is never defined.
Once it is, how can someone prove their employee is high on the job?
“Just because you have cannabis inside your system, does that mean that you’re impaired? Cannabis can stay inside the system for long periods of time," Alexander said.
Priory Medical Group reports cannabis is detectable for up to three months.
AB 2188 states employers will use a test that can determine impairment but doesn’t go into detail about how that test will work.
"I think this is one of the areas where there will be growing pains because there are there may be circumstances where a person tests and the tests are not going to be accurate," Alexander said.
Larson doesn’t smoke anymore because he could be tested at any point, but says weed outside work shouldn’t be a problem.
“If they're calling it a discrimination law and they're saying no one should be discriminated against, I want the state to either include us or to explain to us why we are so different than everyone else," Larson said.
In October, Newsom signed another bill — Senate Bill 700 — related to cannabis into law that will block most employers from asking job applicants about their prior cannabis use starting next year.
