CA Expands Law to Prohibit Discrimination for Prior Cannabis Use

Earlier this month, California Governor Gavin Newsom signed Senate Bill (SB) 700, which amends the state’s Fair Employment and Housing Act (FEHA) to protect applicants from discrimination for prior cannabis use. The law also provides for some specific exceptions. This isn’t the first time California has expanded cannabis law into the realm of employment. In October 2022, Governor Newsom signed AB 2188, protecting against discrimination for an employee’s off-duty cannabis use. Both laws take effect on January 1st, 2024.

Overview of Marijuana Laws

While recreational marijuana use remains illegal federally as a Schedule 1 drug, California law has conflicted with federal law. For example, the Compassionate Use Act of 1996 made the medical use of marijuana legal in California with a physician’s recommendation. Meanwhile, California’s Proposition 64: The Adult Use of Marijuana Act legalized specified personal use and cultivation of marijuana for adults at least 21 years of age. While these laws protect individuals from criminal prosecution in the state, they do not apply any protections to the workplace. Most recently, AB 2188 amended FEHA to introduce new protections for employees’ off-duty cannabis use. Specifically, AB 2188 limits employment drug screening tests that isolate THC. It focuses on adverse employment actions taken because a drug screening test found non-psychoactive cannabis metabolites in an individual.

Applying SB 700 to an Applicant’s Prior Cannabis Use

SB 700’s amendments to FEHA expand on previous protections for off-duty cannabis use, prohibiting employers from requesting information from applicants about their previous marijuana use. Additionally, the law prohibits employers from using information related to prior cannabis use obtained from using an applicant’s criminal history. Exceptions to this rule include any inquiries into that information that the state’s Fair Chance Act or other state or federal law permits. This includes the following permissions:

• Testing based on reasonable suspicion of drug abuse or current intoxication;
• Pre-employment testing for public employees; and
• Testing for other jobs, such as construction, that require a federal background investigation.

In any case, the law does not protect a worker’s marijuana use on the job or limit an employer’s prerogative to maintain a drug-free workplace free from recognized safety hazards.

Employer Takeaways

In conclusion, AB 700’s protection against discrimination for prior cannabis use goes into effect on January 1st, 2024. California employers should review their existing drug screening, hiring, antidiscrimination, and drug policies ahead of the changes. Reviewing processes now will ensure compliance at that time. Finally, it remains to be seen which states will enact similar discrimination prohibitions for prior cannabis use. However, employers in every state should stay alert for any changes headed their way. Employers should actively monitor their state’s lawmaking on the subject. Currently, what is permitted on workplace drug policies can differ from state to state. This is another fact to consider, especially for multi-state employers.