California Adds Anti-Discrimination Protections for Off-Duty Cannabis Use and Bereavement Leave

What Changed

Two significant anti-discrimination laws took effect in California on January 1, 2024:

AB 2188 — Cannabis Use Discrimination

Assembly Bill 2188 (AB 2188) makes it unlawful for employers to discriminate against a person in hiring, termination, or any term or condition of employment based on:

• The person's use of cannabis off the job and away from the workplace

• An employer-required drug screening that detects non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids

Employers may still test for psychoactive THC metabolites (indicating recent impairment) but can no longer rely on tests that detect non-psychoactive metabolites, which can remain in the body for weeks after use.

Exemptions: Federal contractors, applicants and employees in the building and construction trades, and positions requiring a federal background investigation or security clearance.

SB 848 — Reproductive Loss Bereavement Leave

Senate Bill 848 (SB 848) requires employers with 5 or more employees to provide up to 5 days of unpaid leave following a reproductive loss event, including miscarriage, stillbirth, failed adoption, failed surrogacy, or unsuccessful assisted reproduction. Employees have three months to use the leave, and employers may not require documentation to substantiate the claim.

Who Is Affected

• AB 2188: All California employers, with limited exemptions for federal contractors and the building and construction trades.

• SB 848: Employers with 5 or more employees.

Both laws protect all categories of employees, including full-time, part-time, and temporary workers.

Where It Applies

California statewide.

When It Takes Effect

Both laws took effect on January 1, 2024.

Why It Matters

These laws expand California's already broad anti-discrimination framework in two meaningful directions. AB 2188 requires employers to rethink their drug testing programs. Hair follicle tests and standard urine screens that detect non-psychoactive metabolites are no longer acceptable bases for adverse employment actions. Employers must adopt testing methods that identify psychoactive THC only.

SB 848 fills a gap in California's leave laws by recognizing reproductive loss as a qualifying event for protected leave. The no-documentation requirement is notable and reflects the legislature's intent to reduce barriers for employees experiencing sensitive personal losses.

Non-compliance with either law may expose employers to discrimination claims, civil penalties, and attorney's fees under the California Fair Employment and Housing Act (FEHA).

The Humareso Take

These two changes reflect California's continued push to broaden workplace protections in ways that directly affect how employers handle sensitive situations. On the cannabis side, if you're still using hair follicle tests or standard urine panels as a basis for employment decisions, you're now on the wrong side of the law. On reproductive loss leave, the no-documentation rule means you need to trust and support employees through difficult personal events. Both changes require policy updates and, just as importantly, management training so your team handles these situations correctly.

Recommended Action Steps

1. Review and update your drug testing policy to ensure it does not penalize employees for non-psychoactive cannabis metabolites. Switch to testing methods that detect active THC impairment only.

2. Update your employee handbook to include reproductive loss bereavement leave under SB 848, specifying 5 days of unpaid leave with a 3-month usage window and no documentation requirement.

3. Post the updated California Discrimination poster reflecting the new protections under AB 2188 and related anti-discrimination provisions.

4. Train managers and HR staff on the new cannabis protections (what they can and cannot ask or test for) and the reproductive loss leave process.

5. Review job posting language to remove any references to cannabis screening that could violate AB 2188.

6. Contact your Humareso representative for a comprehensive review of your California anti-discrimination and leave policies.