California employee’s off-duty Cannabis use to be protected — to a point
New California Law Protects Job Applicants and Employees from Discrimination Based on Off-Duty Cannabis Use.
On Jan. 1, it will be unlawful, with certain exceptions, for California employers with five or more employees to discriminate against an applicant or employee based on off-duty cannabis use away from the workplace
In 1996, California voters legalized cannabis use for medical consumption in this state. In 2016, California voters legalized recreational use of cannabis by adults in California.
On Jan. 1, it will be unlawful, with certain exceptions, for California employers with five or more employees to discriminate against an applicant or employee based on off-duty cannabis use away from the workplace or for failing 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.”
Here’s what you need to know about new Government Code Section 12954 of the California Fair Employment and Housing Act.
How did the new law come about?
In 2022, AB 2188 was signed into law, barring employment discrimination for off-duty cannabis use, with certain exceptions, effective Jan. 1, 2024.
This October, SB 700, which revised the new law before it took effect, was signed into law. The key change was to bar an employer from asking applicants about prior cannabis use.
Does the new law bar pre-employment drug testing?
No, but a drug test used to make employment decisions must be “scientifically valid” and must not screen for “nonpsychoactive cannabis metabolites.”
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In enacting AB 2188, the legislature found it is the chemical compound tetrahydrocannabinol (THC) in cannabis that can indicate impairment and cause psychoactive effects. Once THC is metabolized, it is stored in the body as a nonpsychoactive metabolite. “These metabolites do not indicate impairment” — the purpose of drug testing — only cannabis consumption in recent weeks.
The legislature noted that employers now have access to “multiple types of tests” that do not screen for nonpsychoactive metabolites. AB 2188 was made effective Jan. 1, 2024, to address concerns with the supply chain of such alternative tests.
Will employers be allowed to discipline or fire employees who are cannabis-impaired at work?
Yes. The new law does not “permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace ... or any other rights or obligations of an employer specified by state or federal law or regulation.”
Are any employers exempt from the new prohibitions on considering applicant or employee off-duty drug use?
Yes. The law excludes employers that must meet testing or employment requirements of any other state or federal laws that are inconsistent with the new law, including federal funding, licensing, and contracting laws. The federal Controlled Substances Act still makes the sale and distribution of cannabis a federal crime and many federal contracts include drug-free clauses.
The law also “does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance.”
Employers in the, undefined, “building and construction trades” are exempt from the prohibition on discriminating against employees for off-duty drug use, but not from the prohibition on asking applicants about prior use.
Why did building and construction trades receive a limited carve-out from the law?
A legislative analyst reviewing AB 2188 surmised that exempting employers in those trades from the prohibition on discrimination for off-duty cannabis use “could be viewed as a sub-category of the broader exemption for employers who have to discriminate and test for cannabis use pursuant to federal mandates.”
A legislative analyst reviewing SB 700 explained that the “heightened safety concerns” that justify exempting building and construction trade employers from the discrimination prohibition “do not arise prior to an applicant’s interview.” Moreover, federal mandates may exempt building and construction trade employers from the prohibition on inquiries about prior use under the broader exemption.
May an employer reject an applicant previously convicted of a cannabis-related crime?
Yes. The ban on requesting information from an applicant about prior cannabis use does not bar an employer from obtaining and considering information pursuant to Government Code Section 12952 about an applicant’s prior criminal convictions, including cannabis-related criminal convictions, after a conditional employment offer has been made.
Takeaways
- Revise applications and interview templates to exclude questions about prior cannabis use.
- Any drug screening method should not test for the presence of nonpsychoactive cannabis metabolites unless required by federal or state law or regulations.
- Employers may consider an applicant’s prior cannabis use that led to a criminal conviction only if allowed by Government Code Section 12952 or other state or federal law.
