Penalizing for off-the-job cannabis use may go up in smoke

Since 2016, recreational marijuana use by adults 21 years and older has been legal in California. Marijuana use has steadily increased since then, and the state has taken numerous steps both to destigmatize its use and to add protections for cannabis users. Until 2022, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and that did not affect an applicant’s or employee’s job performance.

AB 2188

Last year, the California legislature passed, and Gov. Gavin Newsom signed, AB 2188. AB 2188 expanded the Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against a person in hiring, terminating, or imposing any terms and conditions of employment either because of the person’s use of cannabis away from the workplace or a cannabis drug-screening test that identifies non-psychoactive cannabis metabolites.

Simply put, AB 2188 closed the loophole on an employer’s ability to ask about a person’s off-the-job cannabis use. Despite AB 2188’s prohibition on discrimination on the basis of a person’s off-the-job use, certain employers have continued to ask about it.

In 2023, through SB 700, the California Senate sought to further recent de-stigmatization efforts and create additional protections for cannabis users in the workplace.

SB 700

Introduced by Sen. Steven Bradford, SB 700 adds to the existing FEHA prohibitions on discrimination on the basis of cannabis use by making it unlawful for an employer to request information from an applicant relating to the applicant’s prior use of cannabis. SB 700 provides that adding these protections does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law, and it does not preempt state or federal laws requiring applicants to be tested for controlled substances or mandating federal background checks or security clearances for certain positions.

It is already illegal in California for employers to discriminate against job applicants for prior use of alcohol and other legal drugs. SB 700 extends this protection to previous cannabis use.

Exceptions

Nothing in AB 2188 or SB 700 prevents employers from using scientifically valid drug tests conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as screenings that test for current impairment.

Additionally, the new laws do not cover all workers, as they do not apply to employees in the building and construction trades.

What’s Next?

Employers and employees alike are watching SB 700 closely. The bill passed the Senate in May, and it is currently working its way through various Assembly committees. The entire Assembly will hear and vote on this bill before Sept. 14, and it will either be signed or vetoed by Gov. Newsom by mid-October. If passed and signed into law, it would take effect Jan. 1, 2024, alongside the additional FEHA protections from last year’s AB 2188.

Takeaways

With constantly evolving cannabis laws, employers should remain vigilant to keep up with these changes. Companies should carefully review issues and create policies that balance legal compliance with the specific needs of the business. Here are a few key takeaways:

● Don’t react impulsively. To comply with the new laws, employers should ensure they do not make any adverse employment decisions based upon an applicant’s or employee’s off-duty, offsite, and/or previous cannabis use.

● Make sure your handbooks are up to date. When done right, employee handbooks are a critical tool in providing structure for employees and protection for businesses. When done wrong – or not at all – an employee handbook may be a source of frustration for employees and a source of liability for you. Your employee handbook is only useful to the extent it reflects your existing, lawful policies. Remember to update it regularly.

● Review drug testing policies. As a follow up to the above, employers should be cautious when revising any policies or making any decisions related to drug testing to ensure decisions do not run afoul of other applicable laws.

● Legal Support. Contact your legal counsel if any specific concerns or incidents arise within your workforce.