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BOP NEWSLETTER • November 2022

New Protections for Off-Duty Marijuana Use

California Effective Date: January 1, 2024

With limited exceptions, Assembly Bill 2188 makes it unlawful for an employer to discriminate against an individual “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, except for preemployment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

Specifically, the new law prohibits the use of drug tests that rely on finding non-psychoactive cannabis, as the California Legislature found that these tests do not reflect the individual’s impairment, but rather an individual’s cannabis usage. This means that employers will be prohibited from firing employees or denying applicants job positions if drug test results merely detect cannabis metabolites in hair, blood, urine, or other bodily fluids.

District of Columbia Effective Date: October 22, 2022.

Known as the “Cannabis Employment Protections Amendment Act of 2022,” the new law states that employers, with limited exceptions, may not “refuse to hire, terminate from employment, suspend, fail to promote, demote, or penalize an individual based upon the individual’s use of cannabis, the individual’s status as a medical cannabis program patient, or the presence of cannabinoid metabolites in the individual’s bodily fluids in an employer-required or requested drug test without additional factors indicating impairment.”