California Employees Who Use Cannabis Gain Additional Protections

Effective January 1, 2024, two new California laws enhance protections for employees who use cannabis away from the workplace. SB 700 expressly prohibits employers from requesting information from job applicants relating to prior cannabis use. Assembly Bill (AB) 2188 prohibits employers from penalizing employees or applicants for off-duty cannabis use if it does not impair them at the workplace.

In AB 2188, the Legislature noted that the psychoactive chemical compound found in cannabis, may be stored in the body for as long as a month as a non-psychoactive cannabis metabolite after it is metabolized. The metabolites do not indicate that the individual is currently under the influence of cannabis, but only that s/he recently consumed cannabis. Because drug tests are intended to identify employees who may be impaired, the Legislature declared that tests that detect the amount of non-psychoactive metabolites in the blood do not accomplish that goal as they do not correlate to impairment on the job. In addition, alternative drug testing devices that do not rely on the presence of non-psychoactive cannabis metabolites, but which can identify the presence of THC in an individual’s bodily fluids, are more readily available and better indicators of impairment.

SB 700 expands AB 2188’s protections by prohibiting employers from requesting that applicants provide information about their prior cannabis use. However, SB 700 does not prohibit employers from inquiring about an applicant’s criminal history if doing so is otherwise permitted by law, such as from a legally obtained criminal history report, and if such information is otherwise lawful for an employer to consider in making employment decisions.

In the wake of SB 700, California employers should review their application process and any pre-employment drug screening protocols, as well as their policies and practices relating to drug screening in connection with hiring, discipline, and termination to ensure they will comply with the new law. We can assist with this process.