Off Duty Marijuana Use: How AB 2188 and SB 700 Impact Public Employees in California

Special Update Courtesy of Rains Lucia Stern St. Phalle & Silver, PC 

The New Year Brings New Legislation: How AB 2188 and SB 700 Impact Public Employees in California
By Pete Hoffmann, Partner; Timothy Talbot, Principal; Rocky Lucia, Principal; Mike Rains, Principal

As our calendars rolled over to 2024, new legislation took effect to update the California Fair Employment and Housing Act (FEHA) and expand the rights of employees to use marijuana off duty. Specifically, AB 2188 and SB 700 added off-duty cannabis users to the list of protected classes under FEHA, but interestingly exempted the building and construction trades. While the legislation provides narrow exceptions to this rule, police officers, deputy sheriffs, firefighters, dispatchers, and other public employees are not exempted, and are now generally afforded statutory protections for off-duty cannabis use.

What if my employer disagrees with employees using marijuana

Simply stated, the new legislation is not discretionary. While the historical relationship between law enforcement and cannabis is obviously complex given drug enforcement efforts, the social, political, and medical views of cannabis have evolved over the course of time. 

In light of this history, it is to be expected that some management and labor representatives may share genuine concerns with respect to a workforce that regularly consumes cannabis. However, AB 2188 and SB 700 are unequivocal with respect to discriminatory conduct based upon an employee’s off duty use of cannabis where the psychoactive effects are no longer present when the employee reports to work. 

Are employees allowed to come to work under the influence of marijuana

No. Both AB 2188 and SB 700 are clear that protections only apply to nonpsychoactive cannabis metabolites. Government Code section 12954(d) specifically states: “This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace ....” Similar to employees that consume alcohol in the days/hours before their shift, employees that use cannabis bear the risk that THC remains active in their system even ....

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