Protected classifications, or classes, in California include race, color, ancestry, national origin, religion, creed, age (40 and over), mental and physical disabilities, sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military or veteran status.  Harassing or discriminating against an employee because the person falls under one or more of those classification is strictly prohibited by law.

Effective January 1, 2024, California added another protected class to the Fair Employment and Housing Act for those who use cannabis off-the-job and off-workplace. It is now unlawful for an employer with five or more on payroll to discriminate against a person in hiring, termination, or any term or condition of employment for such use.

These protections do not apply to workers in the building and construction trades or to anyone hired for jobs requiring federal government background investigation or security clearance.

All employers can continue to prohibit – and to discipline — employees from possessing, being impaired by, or using cannabis on the job.

Take-Aways:

Covered employers should:

• Ensure hiring, termination or other employment decisions are not based upon use of cannabis off the job and away from the workplace;
• Review and update policies and procedures to include that off-duty cannabis use is now a protected classification;
• Update substance abuse and drug testing policies; and
• As we previously discussed, ensure preemployment post-offer marijuana drug tests screen only for psychoactive cannabis metabolites.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Friday, January 26, 2024 & Friday, February 23, 2024 Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws (January 16, 2024)
• New Year, New Leaf- Workplace Policy Handbook & Forms for 2024 (January 5, 2024)
• What’s New in 2024 – Equal Opportunity Intoxication? Off-Hours Cannabis Users Now Protected Against Workplace Discrimination (October 27, 2023)

Cindy Bamforth
January 25, 2024