New Dawn in the Workplace: Understanding California’s Cannabis Discrimination Laws

by | Feb 29, 2024 | Discrimination, General Issues

cannabis buds and joints on a table highlighting the updated California cannabis discrimination laws

Introduction

Cannabis use is legal in California for both medicinal and adult recreational purposes. (Go here for more information on the legal use of cannabis in California.) Under new legal provisions, California employers are now barred from discriminating against workers who test positive for past cannabis use in specific types of drug screens and from asking job seekers or current employees about their off-duty cannabis use. Keep reading to learn about the updated California cannabis discrimination laws.

These new prohibitions are the result of two recent amendments to California’s Fair Employment and Housing Act (FEHA). The FEHA bars employers from discriminating against job applicants and employees based on protected characteristics, which include age (40 and over), ancestry, color, creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex, and sexual orientation. The FEHA also requires employers to provide (absent an undue hardship) reasonable accommodations to employees with disabilities, including those who use medical cannabis for treatment.

Two new laws amended the FEHA to provide additional protections for cannabis users, effective January 1, 2024. Those laws are AB 2188 and SB 700.

I. Protection Against Discrimination and Harassment Based on Off-Duty Cannabis Use

AB 2188 expanded the FEHA’s anti-discrimination coverage to protect job applicants and current employees from adverse actions – such as demotion, refusal to hire, harassment, or termination –based on their use of cannabis outside of work.

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    II. Restrictions on inquiring about past cannabis use

     

     

    Under SB 700, employers are not allowed to inquire or request information about an applicant’s prior use of cannabis. It also prohibits employers from using information about prior cannabis use obtained from the job seeker’s criminal history.

    However, there are some exceptions. Those are when the employer is permitted to consider or inquire about that information under California’s Fair Chance Act, or other state or federal laws. These exceptions often apply when an applicant’s current or recent drug use is directly related to the requirements of the job, such as safety-sensitive job duties or federal contracts that require compliance with federal drug-free workplace laws.

    III. No Cannabis At Work

    It is important to note that AB 2188 only prohibits employers from discriminating against workers based on cannabis use outside of the workplace. In other words, it does not impede an employer’s right to maintain a drug-free workplace. Workers who possess, or are actively impaired by, cannabis in the workplace may be subject to discipline and other adverse actions, including denial of opportunities and discharge.

    IV. Pre-Employment Drug Testing and Psychoactive Cannabis Metabolites

    While California employers are allowed to conduct some types of pre-employment drug testing, AB 2188 also places some restrictions on testing for cannabis use. The key is the difference between tests that indicate past use and tests that reveal current impairment. As the new law explains, tetrahydrocannabinol (THC) is the chemical compound in cannabis that can indicate current impairment and cause psychoactive effects. After tetrahydrocannabinol is metabolized, it is stored in the body as a non-psychoactive cannabis metabolite.

    AB 2188 prohibits employers from taking adverse employment actions against workers based on the results of tests that identify only non-psychoactive cannabis metabolites in the worker’s hair, blood, urine, or other bodily fluids. Non-psychoactive cannabis metabolites do not indicate present impairment; rather they are trace indicators of past cannabis use that can linger for days or weeks.

    Nevertheless, AB 2188 does not prevent employers from using other tests – that do not rely on the presence of non-psychoactive cannabis metabolites – to detect current impairment. Permissible alternative tests include impairment tests, which measure an individual employee against their own baseline performance, and tests that identify the presence of THC in an individual’s bodily fluids.

    V. Exemptions to Both New Laws

    These two laws both contain the following three exemptions: 

    (1) they do not apply to an employee/job applicant in the building and construction trades;

    (2) they do not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance;

    (3) they do not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or how they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

    VI. Practical Implications for Employers

    In light of these new laws, employers should:

    • Review, and if necessary, revise their anti-discrimination policies as well as their drug use policies and procedures to comply with the new legal requirements;
    • distinguish in their policies between cannabis use outside of work versus impairment on the job;
    • ensure that any cannabis testing programs they implement measure only psychoactive marijuana components;
    • determine whether they need to update their policies and procedures concerning criminal background checks;
    • review their application forms and onboarding paperwork to make sure nothing in these documents requests or requires information about a job applicant’s prior cannabis use; and
    • provide education and training to their employees and supervisors on the rights and responsibilities of both employers and employees regarding off-duty cannabis use. They should be sure to address if any of the exceptions apply to a particular group of employees within the organization.

    VII. Practical Implications for Employees

    Employees must keep in mind that these new laws only pertain to off-duty use of cannabis outside the workplace. As noted above, workers who possess, or are actively impaired by, cannabis on duty and/or in the workplace may be subject to discipline and other adverse employment actions.

    Conclusion

    Although these new laws place some limitations on California employers regarding their ability to inquire about, and test for, past and off-the-job cannabis use, employers still have the right to establish drug-free workplace policies, set safety policies, and conduct drug testing that complies with state and federal laws.

    While these new laws align with the rising trend of state-level legalization and regulation of cannabis, it is vital to remember that cannabis remains illegal at the federal level. Moreover, some industries, such as transportation and building/construction, and federal contractor employers, are subject to federal regulations that may prohibit cannabis use or possession by employees.

    The skilled employment law lawyers at Rothschild & Alwill, APC have an in-depth understanding of the relevant legal considerations. Email us or call or office in our Central Valley office in Bakersfield at (661-369-8510) or in Santa Barbara at (805-845-1190) to schedule an initial confidential consultation at no charge. Se habla Español.