California has recently passed two new laws that protect the rights of cannabis users in the workplace. These laws, which took effect on Jan. 1, 2024, prohibit most employers from discriminating against cannabis users or asking about their past cannabis use on job applications.
They also require employers to use a scientifically valid test that only detects recent cannabis use, instead of a common test that can detect cannabis months after consumption. These changes are expected to reduce the stigma and barriers faced by cannabis users who are looking for a new job or want to keep their current one.
Cannabis, also known as marijuana, is a plant that contains psychoactive compounds that can alter one’s mood, perception, and cognition. Cannabis has been used for medical and recreational purposes for thousands of years, but it has also been subject to legal and social restrictions in many countries.
In the United States, cannabis is classified as a Schedule I drug under the federal Controlled Substances Act, which means it has no accepted medical use and a high potential for abuse. However, some states have legalized cannabis for medical or recreational use, creating a conflict between state and federal laws.
In California, cannabis was legalized for medical use in 1996, and for recreational use in 2016. According to the latest data from the California Department of Public Health, there were more than 3.6 million cannabis users in the state in 2020, accounting for about 11% of the adult population.
However, despite the legal status of cannabis in California, many cannabis users still face discrimination and harassment in the workplace. Employers can fire, penalize, or refuse to hire cannabis users based on their drug test results, even if they use cannabis legally and responsibly outside of work hours and away from the workplace. This can have negative impacts on the cannabis users’ livelihood, health, and well-being.
To address this issue, California lawmakers introduced two bills in 2022 that aimed to increase the workplace protections for cannabis users. These bills were Assembly Bill 2188 (AB 2188) and Senate Bill 700 (SB 700), and they were both signed into law by Governor Gavin Newsom in September 2022. The new laws became effective on Jan. 1, 2024, and they made several major changes to the existing employment laws regarding cannabis use.
AB 2188, authored by Assemblymember Rob Bonta, amended the California Labor Code to prohibit employers from requiring tests for cannabis use for job applicants or randomly for employees, unless the test is scientifically valid and the position falls under certain exceptions.
A scientifically valid test is defined as a test that can accurately measure the level of impairment or intoxication caused by cannabis use, and not just the presence of cannabis metabolites in the body. The exceptions include positions in the building and construction trades, or positions that require a federal background investigation or security clearance.
AB 2188 also amended the California Fair Employment and Housing Act to prohibit employers from firing, penalizing, or discriminating against employees or job applicants because of their cannabis use outside of work and away from the workplace, unless the employer can prove that the cannabis use impaired or would impair the employee’s work performance. The law also prohibits employers from asking about past cannabis use on job applications or during interviews, unless the position falls under the aforementioned exceptions.
SB 700, authored by Senator Scott Wiener, amended the California Health and Safety Code to prohibit employers from discriminating against employees or job applicants who are qualified patients under the Compassionate Use Act of 1996, which allows the use of cannabis for medical purposes with a doctor’s recommendation.
The law also prohibits employers from discriminating against employees or job applicants who use cannabis for medical purposes under the Adult Use of Marijuana Act of 2016, which allows the use of cannabis for recreational purposes by adults 21 years or older. The law does not apply to positions that fall under the exceptions mentioned in AB 2188.
The new laws are expected to have significant implications for both employers and employees in California. For employers, the laws mean that they have to revise their drug testing policies and practices to comply with the new requirements and avoid potential lawsuits.
Employers have to ensure that they use a scientifically valid test for cannabis use, and that they do not discriminate against cannabis users based on their test results or their past cannabis use, unless they can show a legitimate business reason for doing so. Employers also have to respect the privacy and medical confidentiality of cannabis users, and provide reasonable accommodations for those who use cannabis for medical purposes, unless it would cause undue hardship to the employer.
For employees and job applicants, the laws mean that they have more protection and freedom to use cannabis legally and responsibly outside of work and away from the workplace, without fear of losing their job or being denied a job opportunity. Cannabis users can also assert their rights and seek legal remedies if they face discrimination or harassment in the workplace because of their cannabis use.
However, the laws do not give cannabis users a carte blanche to use cannabis at work or while performing their job duties, or to work while impaired or intoxicated by cannabis. Cannabis users still have to follow the rules and expectations of their employers, and perform their work safely and effectively.
California has made a major change to its employment laws regarding cannabis use, by passing two new laws that protect the rights of cannabis users in the workplace. These laws prohibit most employers from discriminating against cannabis users or asking about their past cannabis use on job applications, and require employers to use a scientifically valid test that only detects recent cannabis use, instead of a common test that can detect cannabis months after consumption. These changes are expected to reduce the stigma and barriers faced by cannabis users who are looking for a new job or want to keep their current one, and to create a more fair and inclusive workplace culture in California.