California Enacts Further Protections for Marijuana-Using Workers and Job Applicants
Passed in 2022 and effective January 1, 2024, Assembly Bill 2188 creates Government Code section 12954 to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:
(1) The person’s use of cannabis off the job and away from the workplace; or
(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, urine, or other bodily fluids.
Now Senate Bill 700, which will also become effective on January 1, 2024, amends Government Code section 12954 to make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis. Thus, any questions about prior marijuana use must be omitted from job applications and job interviews. Information about a person’s prior cannabis use obtained from the person’s criminal conviction history are exempt from the new law.
Government Code section 12954 is not intended to permit employees to possess or use marijuana on the job, nor will it affect the rights of employers to maintain a drug- and alcohol-free workplace. Rather, the focus of 12954 is on tetrahydrocannabinol (THC) and impairment of the individual. THC is the chemical compound in cannabis that causes impairment and psychoactive effects. After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate that an individual is impaired, but only reveal whether an individual has consumed cannabis recently.
Based on the distinction between THC and metabolites, the legislation will not prohibit an employer from making employment decisions “based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” Thus, a drug test for THC that does not rely on the presence of nonpsychoactive cannabis metabolites can be used, as can impairment tests that measure a person against their own baseline performance.
Government Code section 12954 will not apply to an employee in the building and construction trades, and will not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance. Further, the law will not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws relating to receiving federal funding or federal licensing-related benefits, or entering into federal contracts.