Recently, California has implemented two new laws that aim to safeguard the rights of individuals who use cannabis while at work. Starting from Jan. 1, 2024, these laws prevent employers from discriminating against individuals who use cannabis or inquiring about their previous cannabis use on job applications.
In addition, employers are mandated to utilize a scientifically reliable test that solely identifies recent cannabis usage, as opposed to a more general test that can detect cannabis consumption from months ago. These changes aim to make it more accessible for cannabis users to find employment or maintain their current job by reducing the associated stigma and barriers.
Context
Cannabis, also referred to as marijuana, is a plant that contains psychoactive compounds capable of affecting a person’s mood, perception, and cognition. Cannabis has a long history of being used for both medical and recreational purposes. However, it has faced legal and social restrictions in numerous countries.
In the United States, cannabis is classified as a Schedule I drug under the federal Controlled Substances Act. This classification indicates that it is considered to have no accepted medical use and a high potential for abuse. Nevertheless, there is a conflict between state and federal laws due to the legalization of cannabis in some states for medical or recreational use.
California legalized cannabis for medical use in 1996, followed by recreational use in 2016. Based on the most recent information from the California Department of Public Health, over 3.6 million individuals in the state used cannabis in 2020, which is roughly 11% of the adult population.
Nevertheless, even with the legalization of cannabis in California, numerous individuals who use cannabis still encounter unfair treatment and mistreatment in their workplaces. Employers have the authority to terminate, impose consequences, or decline to hire individuals who test positive for cannabis, regardless of whether they consume it legally and responsibly during their personal time and outside of the workplace. These factors can greatly affect the lives, health, and overall well-being of cannabis users.
Recent legislation
In 2022, California lawmakers introduced two bills to enhance workplace protections for cannabis users. Governor Gavin Newsom signed two bills into law in September 2022. These bills were Assembly Bill 2188 (AB 2188) and Senate Bill 700 (SB 700). The new laws took effect on Jan. 1, 2024, and brought about significant changes to the existing employment laws concerning cannabis usage.
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AB 2188
Assemblymember Rob Bonta introduced AB 2188, which made changes to the California Labor Code. The amendment now prevents employers from mandating cannabis tests for job applicants or conducting random tests on employees, unless the test is scientifically valid and the position falls under specific exceptions.
A scientifically valid test is one that accurately measures the degree of impairment or intoxication resulting from cannabis use, rather than solely detecting the presence of cannabis metabolites in the body. There are some exceptions to this rule, such as positions in the building and construction trades, or positions that require a federal background investigation or security clearance.
AB 2188 also made changes to the California Fair Employment and Housing Act. It now prevents employers from taking negative actions against employees or job applicants due to their cannabis use outside of work and away from the workplace. However, employers can still take action if they can prove that the cannabis use negatively affects the employee’s job performance. Employers are not allowed to inquire about previous cannabis use on job applications or during interviews, unless the position is one of the exceptions mentioned.
SB 700
SB 700, introduced by Senator Scott Wiener, made changes to the California Health and Safety Code to prevent employers from unfairly treating employees or job seekers who are qualified patients under the Compassionate Use Act of 1996. This act permits the use of medical cannabis with a doctor’s recommendation.
Employers are not allowed to discriminate against employees or job applicants who use cannabis for medical purposes, as stated in the Adult Use of Marijuana Act of 2016. This act permits the recreational use of cannabis by adults who are 21 years or older. Positions that fall under the exceptions mentioned in AB 2188 are not subject to the law.
Significance
The new laws will have important effects on employers and employees in California. Employers must update their drug testing policies and practices to meet the new requirements and prevent possible legal action.
It is important for employers to use a scientifically valid test for cannabis use and to avoid discriminating against individuals based on their test results or past cannabis use, unless there is a legitimate business reason. Employers must also uphold the privacy and medical confidentiality of cannabis users and make reasonable accommodations for those who use cannabis for medical reasons, as long as it does not overly burden the employer.
Employees and job applicants can now enjoy increased protection and freedom to use cannabis legally and responsibly outside of work and away from the workplace. This means they no longer have to worry about losing their job or being denied a job opportunity. Cannabis users have the option to stand up for their rights and pursue legal action if they experience discrimination or harassment at work due to their cannabis use.
Nevertheless, it is important to note that the laws do not grant cannabis users unrestricted permission to use cannabis during work hours or while carrying out their job responsibilities, nor does it allow them to work while under the influence or intoxicated by cannabis. It is important for cannabis users to adhere to their employers’ rules and expectations, ensuring they can carry out their work in a safe and efficient manner.
In summary
California has recently implemented two new laws that aim to safeguard the rights of individuals who use cannabis in the workplace. These laws signify a significant shift in the state’s employment regulations regarding cannabis use. These laws ensure that employers cannot discriminate against individuals who use cannabis or inquire about their previous cannabis use on job applications. Additionally, employers are required to use a scientifically valid test that only detects recent cannabis use, rather than a test that can detect cannabis consumption from months ago. These changes aim to make it easier for cannabis users to find employment and maintain their current jobs, while fostering a more equitable and inclusive work environment in California.
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