New California Employment Protections Take Effect for Marijuana Users

Jan 16, 2024

California is starting 2024 with new employment protections taking effect for marijuana users. Though they took effect on January 1 of this year, they stem from two laws passed in 2023. These new protections closely resemble similar legislation that recently took effect in Washington.

The new employment protections will bar California employers from discriminating against marijuana users. In most cases, California employers cannot discriminate against workers who test positive for cannabis. Separate legislation also bars employers from inquiring into an employee or job applicant’s off-duty use of cannabis. Combined, these new laws create some of the strongest employment protections for marijuana users in the country. As such, employers must understand how these laws affect hiring processes and drug testing.

Amending the Fair Employment and Housing Act

Under the first new law, AB 2188, the state has amended the Fair Employment and Housing Act (FEHA). The FEHA now protects employees from discrimination based on their cannabis usage. Specifically, the law prohibits employers from refusing to hire, penalizing, firing, or otherwise taking adverse action based on off-duty marijuana use. The law specifically prohibits employers from using the results of hair or urine tests, which risk false positives. This decision prevents adverse employment-related decisions based on usage that happened days or weeks before the positive drug test.

Sealing a Loophole

The second law, SB 700, amended the FEHA to seal what many saw as a loophole in the former bill. By removing this loophole, SB 700 made it unlawful for employers to inquire into a job applicant’s past use of cannabis. Employers must understand that this ban also includes questions about criminal history concerning marijuana. 

Existing state laws already protect job applicants from discrimination based on prior use of alcohol and other legal substances. As such, SB 700 acts as an extension to the employment protections for marijuana users. Included with the extensions and amendments, AB 2188 and SB 700 created exemptions to the FEHA for eligible employment circumstances.

Qualifying employers include those in the building and construction industry. The new FEHA exemptions also include employment in positions requiring federal background screening or clearances. The laws also do not preempt existing state and federal laws applicable to companies receiving federal contracts, funds, or benefits.

These new employment protection laws began at the start of January 2024. As such, employers who have not reviewed their hiring and employment policies concerning marijuana should start soon. Working with a trustworthy employment screening provider is one way to get started. The right partner will deliver accurate, compliant, timely reports for employers to make informed decisions.

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