New California Employment Protections Take Effect for Marijuana Users

California is starting 2024 with new employment protections taking effect for marijuana users. Though they took effect on January 1 of this year, they stem from two laws passed in 2023. These new protections closely resemble similar legislation that recently took effect in Washington.

The new employment protections will bar California employers from discriminating against marijuana users. In most cases, California employers cannot discriminate against workers who test positive for cannabis. Separate legislation also bars employers from inquiring into an employee or job applicant’s off-duty use of cannabis. Combined, these new laws create some of the strongest employment protections for marijuana users in the country. As such, employers must understand how these laws affect hiring processes and drug testing.

Amending the Fair Employment and Housing Act

Under the first new law, AB 2188, the state has amended the Fair Employment and Housing Act (FEHA). The FEHA now protects employees from discrimination based on their cannabis usage. Specifically, the law prohibits employers from refusing to hire, penalizing, firing, or otherwise taking adverse action based on off-duty marijuana use. The law specifically prohibits employers from using the results of hair or urine tests, which risk false positives. This decision prevents adverse employment-related decisions based on usage that happened days or weeks before the positive drug test.

Sealing a Loophole

The second law, SB 700, amended the FEHA to seal what many saw as a loophole in the former bill. By removing this loophole, SB 700 made it unlawful for employers to inquire into a job applicant’s past use of cannabis. Employers must understand that this ban also includes questions about criminal history concerning marijuana. 

Existing state laws already protect job applicants from discrimination based on prior use of alcohol and other legal substances. As such, SB 700 acts as an extension to the employment protections for marijuana users. Included with the extensions and amendments, AB 2188 and SB 700 created exemptions to the FEHA for eligible employment circumstances.

Qualifying employers include those in the building and construction industry. The new FEHA exemptions also include employment in positions requiring federal background screening or clearances. The laws also do not preempt existing state and federal laws applicable to companies receiving federal contracts, funds, or benefits.

These new employment protection laws began at the start of January 2024. As such, employers who have not reviewed their hiring and employment policies concerning marijuana should start soon. Working with a trustworthy employment screening provider is one way to get started. The right partner will deliver accurate, compliant, timely reports for employers to make informed decisions.

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Washington, D.C., recently introduced new rules concerning cannabis usage. These rules will soon prohibit employers from taking adverse action under specific circumstances. These new regulations will take effect on July 13, 2023, under the Cannabis Employment Protections Act, signed into law last year.

Prohibited Actions

The Cannabis Employment Protections Act prohibits employers from taking adverse action based on several cannabis-related crimes. Examples of adverse actions include denying or terminating employment. The cannabis-related causes include the following:

• The use of marijuana products;
• Status as a medical marijuana user; or 
• Testing positive for marijuana use without additional factors indicating job impairment.

As a result, employers may take adverse action in specific cases. For example, they must provide additional evidence proving the employee’s impairment while working. However, the new Act has set the bar high for proving impairment.

Employers must demonstrate that an employee exhibited “specific and articulable” symptoms of impairment. In addition, they must prove that the employee displayed these symptoms while performing their duties or during working hours. Employers must also prove that these symptoms noticeably impacted the employee’s performance. Finally, the employer must demonstrate that the symptoms prevented them from fulfilling their obligation to maintain a safe and healthy workplace.

What Can Employers Do?

Despite these changes, employers may prohibit using or possessing cannabis while working. The only exception is for medical marijuana users. As such, employers may adopt policies requiring drug tests due to workplace accidents. They may also test upon reasonable suspicion of impairment.

In addition, employers may test and take adverse action in cases when required by federal law, contract, or funding agreements. The Act also allows them to test for “safety-sensitive” positions that fit the law’s criteria. The law considers a safety-sensitive position as one that could reasonably foresee actual, immediate, and severe bodily injury or loss of life due to impairment. Such positions could include operating heavy machinery or motor vehicles. Examples of impairment include employees working under the influence of drugs or alcohol. 

Compliance with employment laws, including regulations like the Cannabis Employment Protections Act, is crucial. Similar to cannabis testing, many local, state, and federal legislators have enacted stringent requirements concerning background checks. For example, more states and municipalities have enacted Ban-the-Box restrictions.

The constantly changing regulatory environment has proven challenging for employers. As such, employers should collaborate with an experienced background screening provider to ensure compliance with all related laws. The right partner stays updated on the regulations, allowing employers to adhere to background-checking laws, employment protections, and other legal obligations.

JDP makes background checks easy and reliable. Speak with a compliance expert today.

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