Introduction: Why Knowing Your Exemption Status Matters
Before assuming you have legal protection for off-duty cannabis use, it is critical to understand that AB 2188 includes several important exemptions that exclude entire categories of workers from its protections.
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Building and Construction Trades Exemption (§ 12954(c))
“This section does not apply to an employee in the building and construction trades.”
This exemption is absolute and comprehensive if you work in the building and construction trades, you have NO protection under AB 2188 .
Covered occupations include: Carpenters, electricians, plumbers and pipefitters, ironworkers, general laborers, operating engineers, roofers, painters, sheet metal workers, HVAC technicians, concrete workers, masons. -
Federal Security Clearance Positions (§ 12954(f))
AB 2188 does not apply to positions requiring federal government background investigation or security clearance under 32 CFR Part 117 (the NISPOM). -
Small Employer Exemption
FEHA applies to employers with 5 or more employees. Employers with four or fewer employees are not covered by AB 2188’s protections. -
Federal DOT-Regulated Positions (§ 12954(e) + 49 CFR Part 40)
Under 49 CFR Part 40, safety-sensitive transportation employees remain subject to mandatory marijuana testing regardless of state law:
| DOT Agency | Covered Positions |
| FMCSA | CDL holders, school bus drivers, hazmat transporters |
| FAA | Pilots, flight attendants, mechanics, air traffic controller |
| FRA | Train engineers, conductors, dispatchers |
| FTA | Bus operators, rail operators, transit mechanics |
| PHMSA | Pipeline operations, maintenance, emergency response |
| USCG | Maritime workers on commercial vessels |
DOT-regulated employees can still be terminated for positive marijuana tests, even for off-duty use.
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Federal Funding, Licensing, Contract Requirements
Workers may be subject to continued marijuana testing if their employer:
-Holds federal contracts requiring drug-free workplace certification
-Receives federal grants
-Requires federal licensing -
Religious Organization Exemption
A nonprofit religious corporation or association organized primarily for religious purposes is exempt from FEHA, including AB 2188.
Key Points to Remember
- Know if you fall under an exemption BEFORE assuming you’re protected
- Federal law trumps California law for certain positions
- Exemptions are specific not all construction or transportation workers are exempt
- Even if exempt from AB 2188, other legal protections may apply
Disclaimer: This article provides general information and should not be considered legal advice. Consult with an employment attorney about your specific situation.
