California is the latest state to pass an employment law regarding recreational marijuana.
In September 2022, Gov. Gavin Newsom signed Assembly Bill 2188, which bars employment discrimination based on the use of marijuana while employees are not on duty.
It was one of several marijuana-related laws the governor signed, with others related to the industry itself (taxes, licensing, packaging, etc.), as well as criminal reform.
“For too many Californians, the promise of cannabis legalization remains out of reach,” Newsom said in a statement. “These measures build on the important strides our state has made toward this goal, but much work remains to build an equitable, safe and sustainable legal cannabis industry. I look forward to partnering with the Legislature and policymakers to fully realize cannabis legalization in communities across California.”
Recreational marijuana has been legal in California since 2016. The California employment law regarding marijuana goes into effect Jan. 1, 2024.
California Marijuana Employment Discrimination Law
Amending the Fair Employment and Housing Act, the law specifically notes that the presence of tetrahydrocannabinol (TCH), the active compound in marijuana, does not indicate impairment, only that an individual has used cannabis in the past few weeks.
California’s marijuana employment discrimination law bars employers from taking adverse action against people in hiring and firing, as well as other terms or conditions of employment, based on the use of cannabis “off the job and away from the workplace.”
However, as is generally the case with employment laws about marijuana, there are exceptions. California’s law does not apply to workers in the building and construction trades. And it also does not apply to employees who need security clearance, require a federal background check, or would be employed by a federal contractor.
Marijuana Testing in California
Still, despite the provisions in the law about off-duty use, employers would be allowed to discriminate in employment matters “based on scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.”
The intent of drug tests is to identify employees who may be impaired. While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the non-psychoactive cannabis metabolite and have no correlation to impairment on the job.
As science has improved, employers now have access to multiple types of tests that do not rely on the presence of non-psychoactive cannabis metabolites. These alternative tests include impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.
Employers in California will still be able to maintain a drug-free workplace.
Recreational Marijuana Laws in the U.S.
As more states in the U.S. have legalized recreational marijuana in recent years, some lawmakers have included provisions regarding employment practices, as well as drug testing.
For example, it is unlawful for employers in Nevada to refuse to hire someone based on the presence of marijuana in pre-employment drug screenings. The state in June 2019 became the first in the nation to pass such a law.
In Connecticut, starting July 1, 2022, positive drug tests cannot be used as the lone reason for taking adverse action, unless it would violate federal law, the employee is high at work, etc. However, tests can be performed in safety-sensitive jobs.
The patchwork of these laws across the country adds another layer to the complexity of employment law compliance management.
Though California’s marijuana employment discrimination law doesn’t go into effect until 2024, employers may want to consider reviewing their drug testing and discipline policies, as well as hiring and termination practices.