(Source: Zaller Law Group, PC by Anthony Zaller – October 13, 2023)
Governor Newsom recently signed a new law that restricts employers from asking about marijuana use and conducting certain drug tests for applicants and employees. This new law shifts existing regulations that governed an employer’s ability to ask, test, and regulate employee’s use of marijuana in the workplace:
1. AB 700 – Prohibition on discrimination based on cannabis use
AB 700, signed by Governor Newsom on October 7, 2023, prohibits employers from asking applicants and employees about prior marijuana use or implementing drug tests for marijuana in certain circumstances. The new law, which becomes effective on January 1, 2024, specifies that an employer is not prohibited “from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” The legislature stated that there are alternative tests that are permissible, such as “impairment tests, which measure an individual employee against their own baseline performance, and tests that identify the presence of THC in an individual’s bodily fluids.”
Employers are also prohibited from using information regarding an applicant’s or employee’s prior cannabis use derived from a criminal background check, unless this is otherwise permitted under the State’s Fair Chance Law, other state laws, or other federal laws.AB 700 excludes certain employers from these requirements, including employees in the building and construction trades, and employers who are required to conduct federal background investigation or clearances.
The law is also clear that it does not prohibit employers from disciplining employees for being under the influence of cannabis or possessing cannabis while at the workplace.
2. AB 2188: Discrimination in employment: use of cannabis
AB 2188 was passed in 2022 and amends Government Code section 12945 to make it illegal for employers to discriminate against employees who use cannabis off the job and away from the workplace. The bill does not create the right for the employee to be impaired while at work. It also does not apply to the building and construction trades, and does not preempt state or federal laws requiring employees to be tested. AB 2188 law becomes effective on January 1, 2024.
3. Proposition 64
In 2016, California passed Proposition 64 legalizing marijuana. Proposition 64 expressly provides that employers may prohibit marijuana in the workplace and will not be required to accommodate an employee’s use of marijuana.
4. California’s Supreme Court ruling in Ross v. Ragingwire
In Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court examined the conflict between California’s Compassionate Use Act, which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug, and Federal law, which prohibits the drug’s possession, even by medical users. The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.
Our human resource experts here at CalWorkSafety & HR stay on top of these, and many other new and ever-changing laws impacting employers in California. Contact us today to ensure your business’ compliance. Visit us online at https://www.calworksafety.com/contact-us or call (949) 413-6821.