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California prohibits employers from discriminating against employees because of off-duty use of marijuana, with some exemptions. One exemption is for “the building and construction trades.”
California’s AB 2188 greatly expanded the scope of the state’s existing marijuana laws in 2024 by prohibiting discrimination based on the off-duty use of marijuana. (See, generally, High Times Ahead for Employers in California.) This prohibition creates a dilemma for employers who conduct marijuana drug testing because marijuana stays in the human body much longer than alcohol and other drugs. AB 2188 added section 12954 to the Government Code.
AB 2188 does not permit employers to conduct marijuana drug testing unless:
Although many employers remain uncertain about which tests can detect only the psychoactive components of marijuana (urine testing does not comply with the law), there are exemptions from the law worth noting:
AB 2188 does not explain or define the types of businesses or jobs that trigger the exemption for “the building and construction trades.”
An earlier draft of the bill contained this language:
This section does not apply to an employee performing work associated with construction, including work involving alteration, demotion, building, excavation, renovation, remodeling, maintenance, improvement, or repair work, a person licensed under the Contractors State License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code), or an employee performing work in similar or related occupations or trades.
That language later was shortened to “employees in the building and construction trades.” The earlier draft certainly sheds light on the types of jobs that would fall within the exemption.
The benefit of the exemption is that construction employers in California may continue to use urine drug testing for marijuana and to take adverse employment actions against applicants and employees who test positive. Exempt employers do not have to be concerned with using drug tests that detect only the “psychoactive” components of marijuana.
The California courts have not yet addressed the issue of which types of drug tests detect only the “psychoactive” components of marijuana, so employers who do not fall within one of the statutory exemptions must make their own assessments as to the types of drug tests that potentially comply with the law.
Marijuana laws vary tremendously from state to state and even city to city. Within the past few years, several laws have been enacted to restrict or prohibit marijuana drug testing, including, for example:
Employers operating in multiple states must review all applicable marijuana laws to ensure compliance.
Please contact a Jackson Lewis attorney with any questions about employer compliance with this and other workplace laws.
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