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 if they no longer believe they are experiencing its effects.

Peace officers should exercise great caution in purchasing and/or using marijuana, as they may find themselves utilizing deadly force on or off duty and ensuing legal proceedings, both civil and criminal, could draw into question cognitive impairment. Public employees, and especially peace officers, should be mindful of the fact that use of marijuana remains unlawful under federal law, and could present issues under the Federal Gun Control Act concerning an officer’s right to possess firearms.

Is cannabis drug testing still allowed?

Absolutely. Government Code section 12954(a)(1)(A) states that the legislation “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” Thus, the legislation is narrowly tailored to protect against employer discrimination in hiring, termination, or any term or condition of employment, if the discrimination is based upon a person’s use of cannabis off the job and away from the workplace where only the nonpsychoactive cannabis metabolites are present.

If my agency requires or mandates drug testing, am I exempt under this new law?

Public safety employees who are subject to for cause drug testing in situations such as critical incidents or vehicle accidents, will still be subject to existing testing protocols. In addition, any other state or federal law, requiring random drug testing, will be unchanged. 

If I am assigned to a federal task force, does this new law apply to me?

Since marijuana is a federally recognized Schedule One controlled substance, this legislation will not exempt employees who are working with the federal government in a position requiring a federal government background or security clearance, who are governed by federal laws restricting or prohibiting the use of marijuana. Section 12954 also specifically states that it does not preempt federal laws concerning testing for controlled substances where the agency is receiving federal funds or entering into a federal contract where testing is required.

What should I do as an association leader?

As employee organizations maintain the right to meet and confer over drug testing policies (see Holliday v. City of Modesto (1991) 229 Cal.App.3d 528), we encourage all employee organizations to exercise this right to work in collaboration with their employers to: (1) incorporate necessary changes to existing policies, practices, and procedures; (2) identify the application of any exemptions; (3) identify appropriate drug tests; (4) select established and competent laboratories to test samples; (5) articulate objective symptoms that may subject employees to testing; (6) recommend timeframes to refrain from cannabis use prior to work; (7) consider concerns relating to off-duty activities while identifiable as a peace officer (e.g., employees utilizing take-home vehicles and/or wearing work uniforms/insignia); and (8) address updated FEHA training for supervisors. As part of the meet and confer process, association leaders are also encouraged to discern what if any federal contracts or grants with their agency require drug testing as a condition of receiving federal monies and/or benefits. While neither the employee organization nor the employer are expected to promote or encourage employees to consume cannabis, all stakeholders should work collaboratively to ensure that policies, practices, and procedures comply with state law.

Reprinted with permission of Rains Lucia Stern St. Phalle & Silver, PC, 2024. All rights reserved.