AB 2188 and Public Safety Agencies

CATEGORY: Special Bulletins
CLIENT TYPE: Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Dec 01, 2023

Effective January 1, 2024, Assembly Bill 2188 (AB 2188), as amended by Senate Bill 700 (SB 700), makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person if the discrimination is based on either of the following:

  1. The person’s use of cannabis off the job and away from the workplace
  2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids[1]

AB 2188 further makes it unlawful to request information from job applicants relating to their prior use of cannabis.[2]

However, AB 2188 contains a number of exceptions and does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including cannabis.

Addressed below are the exceptions to AB 2188 and some potential preemptions relevant to public safety agencies.

No Specific Exemption for “Safety Sensitive” Employees

As noted above, AB 2188 prohibits employers from discriminating against an employee based on use of marijuana off the job and away from the workplace or a drug test that has only detected the presence of nonpsychoactive cannabis metabolites.

The statute expressly provides an exception for “employees in the building and construction trades”[3] and “applicants or employees hired for positions that require a federal government background investigation or security clearance” in accordance with DOJ regulations.[4]

Notably, AB 2188 provides no such exception for peace officers and other employees who an agency may deem “safety sensitive,” such as dispatchers, jailers, or nurses.  For these and the vast majority of other employees, public safety agencies will be obliged to comply with AB 2188.

Inquiries About Cannabis Use

While AB 2188 prohibits all employers from requesting information from an applicant regarding prior cannabis use, it allows a “criminal justice agency” to consider information about an applicant’s prior cannabis use “obtained from the person’s criminal history.[5]  Therefore, if a criminal history included in a peace officer applicant’s background check contains information about that applicant’s prior cannabis use, a criminal justice agency may consider that information in its hiring decision.

Additionally, subject to other existing legal restrictions, AB 2188 does not limit an employer’s ability to inquire about an applicant’s criminal history – so long as the inquiry is not specific to prior cannabis use.

Further, while AB 2188 expressly prohibits discrimination against job applicants based on their use of marijuana away from the job and off work premises, it does not prohibit an employer from inquiring about an applicant’s use of marijuana on the job or which otherwise resulted in the applicant experiencing the psychoactive effects of marijuana while at work (e.g. consuming marijuana shortly before work started).  It is entirely within the right of employers to ask prospective employees about impairment or use of marijuana while on the job or at the workplace.

Marijuana Drug Screen Testing

Under AB 2188, an employer conducting a marijuana drug screen testing may only utilize a test which tests an applicant or employee for active THC and not nonpsychoactive cannabis metabolites.[6]

AB 2188 does not prevent an agency from testing an employee who appears to be under the influence of marijuana at work[7], nor does it prohibit an agency from disciplining an employee for refusing to undergo testing (i.e., for insubordination).  However, an employer may only act on test results that reveal marijuana use by the employee on the job or at the workplace.  Therefore, it is advisable that an agency only take adverse action against an applicant or employee for refusal to take a lawfully requested test when the test is designed to detect impairment or use of marijuana on the job or at the workplace.

AB 2188 does not affect the rights or obligations of an employer to maintain a drug-free workplace under state or federal law.[8]  However, neither the Federal Drug-Free Workplace Act[9] nor the California Drug-Free Workplace Act[10] relieves an employer from the requirements of AB 2188 because neither statute authorizes an employer to drug test employees or applicants or to discipline employees for use of drugs outside of the workplace.[11]

Similarly, while Health and Safety Code section 11362.45 states that California’s marijuana decriminalization statute[12] does not abridge or affect any existing right for employers to prohibit marijuana use by current or prospective employees outside the workplace, it does not establish any such right or obligation.[13]  Thus, Health and Safety Code section 11362.45 does not relieve employers of their obligation to comply with AB 2188.

Agencies should note that procedures for drug testing employees are a mandatory subject of bargaining under the Meyers-Milias Brown Act.[14] No California court has addressed the negotiability of pre-employment drug testing of job applicants. However, the National Labor Relations Board concluded that applicants are not employees for purposes of an employer’s refusal to bargain under provisions of the federal Labor Management Relations Act.[15]

Possession of Firearms

The federal Gun Control Act of 1968 (GCA)[16] prohibits any person “who is an unlawful user of . . . any controlled substance [as defined under federal law]” from possessing a firearm.  Federal regulations define “unlawful user of” a controlled substance to include “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.”[17]  Unlawful drug use within the prior twelve months may constitute current use.[18]  An exception to that prohibition allows for such individuals to possess firearms issued by and for the use of a public entity.[19]  Thus, the GCA would not prohibit a marijuana user from possessing a firearm issued by a law enforcement agency for use during the employee’s job duties.

However, the GCA’s governmental use exception does not apply to firearms purchased by a government employee for non-governmental or personal use.[20]  Law enforcement officers who use their personally owned firearms in performing their job duties would appear to fall outside of the governmental use exception, i.e., the GCA prohibits law enforcement officers who are active marijuana users from possessing personally owned firearms, even for use in performing their job duties.  Accordingly, while AB 2188 generally prohibits discriminating against employees for off the job marijuana use, the GCA provides a basis by which a law enforcement agency may prohibit marijuana use off the job by officers who use their personal firearms to perform their duties, to ensure adherence to federal law under the GCA.

Further, given that unlawful users of marijuana are prohibited by federal law from possessing firearms for personal use, and that many public safety agency employees possess firearms in their personal capacity for personal use, public safety agencies should consider admonishing their employees accordingly.

Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

[1] Gov’t Code § 12954(a) (effective 1/1/2024).

[2] Gov’t Code § 12954(b) (effective 1/1/2024).

[3] Gov’t Code § 12954(a)(2) (effective 1/1/2024).

[4] Gov’t Code § 12954(f) (effective 1/1/2024).

[5] Gov’t Code § 12954(b) (effective 1/1/2024); Gov’t Code § 12952

[6] Gov’t Code § 12954(a) (effective 1/1/2024).

[7] See AB 2188, Section 1 (finding and declaring that the intent of drug tests is to identify employees who may be impaired, and acknowledging there is a census that employees should not arrive at a worksite high or impaired).

[8] Gov’t Code § 12954(d) (effective 1/1/2024).

[9] 41 U.S.C. §§ 701 et seq.

[10] Gov’t Code § 8355.

[11] See, e.g., Drug-Free Workplace Regulatory Requirements directive dated October 15, 1990, located at https://oui.doleta.gov/dmstree/tein/tein_pre93/tein_15-90.htm.

[12] Health and Safety Code § 11362.1.

[13] Health and Safety Code § 11362.45.

[14] See, e.g., Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 540 (holding Modesto required to bargain with employee representatives prior to implementing mandatory drug testing program).

[15] Star Tribune (1989) 295 NLRB No. 63 [131 LRRM 1404].

[16] 18 U.S.C. § 922(g)(3).

[17] 27 C.F.R. § 478.11.

[18] Id.; See also “Information and Examples of the Application of Title 18, U.S.C. Section 922, Subsection (g)(3): Persons Who Are Unlawful Users of or Addicted to Any Controlled Substance, dated May 2, 2019.

[19] 18 U.S.C. § 925(a)(1); see, Hyland v. Fukuda, 580 F.2d 977, 979 (9th Cir. 1978) (felon otherwise barred from possessing a firearm could lawfully do so in the context of prospective employment in corrections setting because “any firearm [he] might be permitted to carry in the position he seeks would be owned by, and used exclusively for, the state.”); see also, United States v. Mastro, 570 F. Supp. 1388, 1391-93 (E.D. Pa. 1983) (holding governmental use exception applies only to firearms issued by a government entity and used exclusively for governmental purposes) (citing statute and ATF interpretation of same); United States v. Cruz, 50 F.3d 714, 716 (9th Cir. 1995); United States v. Kozerski, 518 F. Supp. 1082, 1090-91 (D. NH 1981).

[20] See Mastro, 570 F. Supp. at 1392-93 (exception inapplicable to firearms purchased by police chief with intent to resell to third parties for private use); Cruz, 50 F.3d at 716 (exception inapplicable where grenades were shipped by United States Navy but subsequently stolen, because defendant’s “receipt of the [grenades] was not for government use”).

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