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Employers May Not Discriminate Against Employees Who Use Marijuana Off-The-Job Beginning In 2024

Beginning in 2024, California employers will be prohibited from discriminating against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person for the use of cannabis off the job and away from the workplace except in limited circumstances. It will also become unlawful for employers to make hiring or disciplinary decisions based upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.

This new legislation, which will become part of the California Fair Employment and Housing Act, is predicated upon a finding that after tetrahydrocannabinol (THC), the chemical compound in cannabis that can indicate impairment, is metabolized, it is stored as a nonpsyohoactive cannabis metabolite. These nonpsyohoactive metabolites, the Legislature found, do not indicate impairment, only that an individual has consumed cannabis in the recent past. Since employers now have access to drug tests that do not rely upon the presence of nonpsyohoactive cannabis metabolites (i.e., those which have no correlation to impairment on the job), those alternative tests will become the only valid drug tests that may be used in the employment context.

The authors of the legislation (Assembly Bill No. 2188) note that although California has legalized the recreational use of cannabis since 2016, workers can still be disciplined or fired for off-the-job cannabis use even though they were not impaired at work. As explained by the Senate Committee Report, “[w]hile such a test [detecting only nonpsyohoactive cannabis] does suggest whether or not the worker has used cannabis at some point in the recent past, it does not tell the employer anything at all about whether the worker is presently impaired from cannabis.”

Importantly, nothing in the new law permits an employee to be impaired by, or to use or possess cannabis on the job. Nor does it apply to employees in the building and construction trades or to positions that require a federal government background investigation or security clearance. In addition, the statute does not preempt federal or state laws that require applicants or employees to be tested for controlled substances as a condition of employment.

Employers have 12 months to prepare for this new law. Part of that preparation will be to review and update pre-employment testing guidelines, employee handbooks and personnel policies, as well as to assess their options to maintain a drug- and alcohol-free workplace. Employers will also want to consult with their existing medical clinics to ensure compliance with permissible drug testing modalities. Administrative guidance and regulations from the California Civil Rights Department is also expected to clear up a number of ambiguities in the new legislation before its effective date of January 1, 2024.

Should you have questions about this law or any issue related to employment law, please feel free to call Christopher Taylor, Esq. at )626) 219-6008.


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