On January 1, 2024, California will become the fourth state in the union – after Maine, Montana and Washington (plus the District of Columbia) — to bar workplace discrimination for off-the-job and off-workplace cannabis use. As below, the law retains employer rights and obligations to maintain an alcohol- and drug-free workplace and to conduct legally compliant drug screenings.
Amending the Fair Employment and Housing Act — prohibiting various forms of employment discrimination – Assembly Bill 2188 and Senate Bill 700 make it unlawful for an employer with five or more persons on payroll to discriminate against a person in hiring, termination, or any term or condition of employment, or “otherwise penalize a person because of the person’s use of cannabis off the job and away from the workplace, except as specified.”
The new law thus makes it unlawful for an employer to seek job applicant information on prior use of cannabis, except as allowed on a criminal background check. See, Assessing Criminal Records in Hiring – New Regulations in Effect October 1, 2023 – Conviction Context Counts (September 29, 2023)
Apparently for safety considerations, these restrictions do not apply to the “building and construction trades,” an exception that appears arbitrary considering the many other hazardous industries.
However, the new provision does not permit an “employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace” as specified by law. This includes the ban on driving or operating a vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by cannabis or cannabis products. See, Drug And Alcohol – Free Workplace Policies – No Exception for Cannabis (September 3, 2021)
The law also draws a line on proper use of drug testing. Management may not discriminate where a legally proper applicant and employee drug screening shows non-psychoactive cannabis metabolites in … hair, blood, urine, or other bodily fluids. However, employers can still decline hiring on an otherwise proper drug screen that seeks and confirms only psychoactive cannabis metabolites. See, Drugs and Alcohol in The Workplace – Balancing Worker Privacy with and Employer’s Right to Protect Safety (March 9, 2011)
Take-Away:
It is a sign of the times that FEHA now establishes recreational cannabis use cannot be a criterion for refusing to hire or for adversely affecting job status. However, employer prerogatives to ban on-the-job intoxications, whether drunk or stoned, remain in place.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
- Keeping It Tight – Drug-and Alcohol-Free Workplace Policy (August 5, 2022)
- Banning Weed in The Workplace – California Employers May Maintain Drug-Free and Alcohol-Free Policies (January 19, 2018)
- California Adopts Ban the Box Law – Employers Cannot Seek Criminal Record until after Offer to Hire Applicant (October 27, 2017)
Tim Bowles
October 27, 2023