New Anti-Discrimination Law for Cannabis Users in California

Effective January 1, 2024, California has new laws designed to protect the rights of cannabis users in the workplace. These laws aim to prevent discrimination and harassment based on a person’s lawful use of cannabis off the job and away from the workplace or the presence of non-psychoactive cannabis metabolites.

Although there are a few notable differences, we recently covered similar cannabis anti-discrimination laws in D.C. and New York. Let’s take a closer look at some of the key points of these new laws and how they affect employers.

California’s AB 2188

AB 2188, which we previously discussed in September 2022, took effect on January 1, 2024. To recap, the law amends California’s Fair Employment and Housing Act (FEHA) to make it unlawful for an employer 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 on either of the following:

• The person’s use of cannabis off the job and away from the workplace or
• An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

In summary, in most scenarios, employers cannot reject, fire, or otherwise treat a person unfavorably because of their cannabis use outside of work or traces of cannabis in their system that do not indicate impairment on the job.

To learn more, look at the full text for AB 2188 here.

California’s SB 700 – an amendment to AB 2188

A recently added amendment to AB 2188, SB 700, signed by Governor Gavin Newsom on October 7, 2023, simultaneously went into effect on January 1, 2024. This amendment further modifies the law enacted by AB 2188, making it generally unlawful for employers to:

• Request information from an applicant for employment relating to the applicant’s prior cannabis use, subject to certain exceptions.
• Discriminate against a person in hiring, termination, or a term or condition of employment based on prior cannabis use or criminal history related to cannabis as a basis for employment decisions unless they are allowed to do so under California’s Fair Chance Act ( Code, § 12952) or other state or federal law.

To find out more, look at the full text for AB 2188 and the amendment to SB 700 here.

How do these laws affect employers in and out of state?

Cannabis use anti-discrimination laws have been sweeping across the United States. Due to a gap between lawful cannabis use and adverse employer action, similar laws where statewide recreational cannabis use is legal are becoming increasingly common. Based on this trend, similar laws to protect employees from lawful cannabis use in states that have recently legalized the recreational use of cannabis may be enacted soon.

These new laws are not the final word on the issue of cannabis and employment. There may be more changes and developments as more states and jurisdictions adopt or amend their laws and as more cases and disputes arise and are resolved. Additionally, specific details regarding supporting evidence of impairment on the job based on drug testing are not yet clear. Employers in California, and even those out-of-state, may want to consult their legal counsel to see if these laws apply and monitor the situation as the legal landscape evolves.