Living the high life: State expands protections for marijuana users

Beginning at the start of next year, a pair of California state law amendments will increase the employment law rights of marijuana users in the state.

In combination, the amendments generally bar employers from discriminating based on the use of marijuana away from work – and prohibit them from even asking applicants about prior cannabis use.

The new measures amend the California Fair Employment and Housing Act. They both take effect on Jan. 1, 2024.

What’s new for marijuana users

In early September of 2022, Gov. Gavin Newsom signed AB 2188. This bill bans California employers from discriminating against applicants and employees based on their “use of cannabis off the job and away from the workplace.”

The prohibition is broad: It applies to “any term or condition of employment,” including hiring and termination.

The amendment further bans discrimination based on a drug test that shows non-psychoactive cannabis metabolites. It says that “these metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.” And it suggests that employers should use other tests, such as impairment tests, in place of tests for non-psychoactive cannabis metabolites.

The latter tests “have no correlation to impairment on the job,” the law asserts.

The amendment does not prevent employers from screening for drugs; it essentially just takes issue with the use of the testing for cannabis metabolites on the basis that the presence of such metabolites is not a reliable indicator of impairment.

The amendment says it does not give employees the right to possess, be impaired by or use cannabis at work. Employers can still maintain a drug- and alcohol-free workplace, it advises.

There are some specific limitations. It does not apply to building or construction jobs, or to positions that require a federal government background check or security clearance under federal regulations. Nor does it preempt other laws that require drug testing of applicants or employees.

Additional amendment: Don’t even ask

In early October of 2023, Newsom signed complementary bill SB 700. This measure also amends the California Fair Employment and Housing Act. SB 700 supplemented AB 2188 by generally barring employers from asking job applicants about their prior cannabis use.

If information about prior cannabis use comes up as a result of the applicant’s criminal history, then employers can consider or ask about that information as permitted by other state or federal law. It does not preempt other laws requiring drug testing.

The recreational and medical use of marijuana has been legal in California since 2016. However, this is the first time the state has provided workplace protections for such use.

Several other states, including Connecticut, Montana, Nevada, New Jersey, New York and Rhode Island, have some measure of employment law protection in place for recreational marijuana use.

Best practices

Here are some general best practices relating to marijuana use and employment.

• State laws vary considerably. Identify the law that applies in your state, and make sure your drug policy and drug-testing protocols comply with all applicable requirements.
• Distinguish between medical marijuana use and recreational marijuana use. Different requirements may apply depending on the type of use involved.
• Regardless of your jurisdiction, you can continue to ban marijuana use and drug-related impairment at work. In states where the recreational use of marijuana is specifically permitted by law, it is very important to clearly inform employees that recreational marijuana use at work is banned.
• When selecting testing methods, consider using tests that do not assess for the presence of non-psychoactive cannabis metabolites. Such alternative tests include impairment tests and tests for the presence of THC in bodily fluids.
• Supervisors should be specifically trained on how to recognize signs of drug-related impairment by employees at work. Symptoms of impairment include red eyes, poor coordination and delayed reaction times.