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Should California AB 2188 Have You Concerned?

Employers Need to Wake Up a New Reality

A new California law, AB 2188, “Discrimination in employment: use of cannabis,” went into effect on the first day of 2024.  It bars employers from discriminating against workers who consume cannabis outside of work hours. Even if your workforce is not in California, you should pay close attention and start preparing for a new reality.


Legal experts in employment suggest that this bill will lead to a new wave of cannabis-related laws affecting workplaces around the country. 

  • Similar developments have already occurred in Washington state, with other states such as Maryland and New Jersey contemplating similar bills.

  • The challenge companies face is keeping their workplace safe under OSHA’s general duty clause and also under the new laws that protect workers’ rights for off-duty cannabis consumption.

Cannabis Legalization across the U.S. is leading to more workplace incidents A recent study by the Journal of the American Medical Association (JAMA) shows that accidents have risen by over 10% among young workers due to the use of cannabis.

As employers in New York and other states deal with the complexities of "off-duty conduct laws," the incorporation of additional testing limitations by California presents a fresh challenge in an already intricate scenario.

The problem is complicated by three key issues:

  1. Laws concerning the use of cannabis vary from state to state

  2. Some state laws prohibit pre-employment testing for cannabis or any cannabis testing of employees

  3. Testing positive for cannabis does not necessarily, and is unlikely to, indicate impairment.


The Solution: Impairment Detection Technology (IDT)

Employers, however, can address these issues by adopting an impairment assessment solution put forth by the National Safety Council (NSC). The National Safety Council has defined impairment as the inability to function normally or safely as a result of several factors –  including chemical substances (e.g., alcohol, opioids, cannabis), physical factors (e.g., fatigue and certain medical conditions), social factors (e.g., professional and other stressors) and mental distress (e.g., related illness and other factors). Addressing the safety of employees and the liability of employers is better accommodated by adopting a broader definition of impairment.


How Impairment Testing Works

To adhere to these regulations and foster safe work environments, employers looking to navigate the complexities of cannabis legalization should consider impairment testing as a part of the solution. Different than drug testing, impairment testing tells you something that drug testing cannot: whether, in real-time, an employee is fit for duty. Because impairment testing does not test for the presence of bodily substances, it is a general, non-specific test. It tells you whether someone is impaired, including from cannabis, but it does not specify the cause.


Impairment tests are a quick, inexpensive, and most importantly, objective, scientific method to determine if someone is fit for duty. Impairment testing does not violate any state or federal laws or an employee’s rights to use cannabis if  legal to do so in that state. Companies should be proactive in adopting measures to monitor workers with Impairment Detection Technology (IDT). DRUID, from Impairment Science, is a leading IDT solution. DRUID is easy to deploy, accurate, inexpensive, and has been validated in multiple peer-reviewed research studies.


Whether California AB 2188 directly affects you are not, it makes sense to consider implementing IDT.  Contact Impairment Science to learn more.


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