Article: Latest California workplace marijuana law leaves even more space for litigation

‘A solution to a problem that really doesn’t exist’: lawyer on California cannabis legislation

California governor Gavin Newsom signed a new cannabis hiring bill into law that makes it illegal for employers to ask potential hires about past marijuana use.

SB-700 is an amendment to the California Fair Employment and Housing Act (FEHA) which prohibits employment discrimination. The law makes it illegal for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis”.

Information on marijuana use obtained from criminal record checks is also off limits.

This law adds to AB-2188, passed in 2022, which made it illegal for employers to “discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace”.

Both of these laws will be enacted on January 1, 2024.

Marijuana employment bills creating litigation for employers

The newest marijuana laws may cause undue litigation risk for employers, said Blank Rome partner Howard Knee.

“I kind of look at this as a solution to a problem that really doesn’t exist,” said Knee. “It prohibits employers essentially from deciding not to hire somebody because of past marijuana use, or marijuana use away from the workplace. Which is typically found when employers conduct post-offer pre-employment drug tests.”

Knee’s advice for employers who are testing for marijuana use is to keep a paper trail documenting their reasons for not hiring in the case of a positive test result. The same goes for termination after a drug test.

“If you do a test and it’s positive, and the employee knows it’s positive, and you don’t hire, then you can be sued. … It’s just expensive for employers. I would advise my clients to not test for marijuana,” he said. “You have to protect yourself against that by having a paper trail that reflects the non-marijuana-related reasons for not hiring the person. It’s just an added burden.”

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