Cannabis and the Workplace

AB 2188: Discrimination for Cannabis Use

Although medical and recreational use of cannabis is already lawful under California law, employers have so far been free to discriminate against employees based on off-the-clock cannabis use. Last year, California amended the Fair Employment and Housing Act to prohibit discrimination based on an employee’s or applicant’s off-duty cannabis use.

Under AB 2188, companies can no longer terminate, refuse to hire, or otherwise discriminate against someone based on (1) a person’s use of cannabis off the job and away from the workplace, or (2) the discovery of non-psychoactive cannabis metabolites (which can stay within the body for weeks after using cannabis) during an employer-required drug test. AB 2188 went into effect on January 1, 2024.

It is now unlawful for California employers to discriminate against employees for using cannabis during their time off, away from the workplace. This includes discrimination in hiring, in employee discipline or discharge, or any term or condition of employment (such as pay, benefits, job assignments, or scheduling).

This new law updated the existing California Fair Employment and Housing Act (FEHA) by adding off-duty cannabis-use discrimination to other types of unlawful employment discrimination, discrimination based on race, gender, age, or disability status.

Employers can still screen for Tetrahydrocannabinol (“THC”), the chemical compound that causes psychoactive effects and can indicate impairment. Employers can prohibit workers from using, being impaired by, and possessing cannabis while at work.

Additionally, there are a number of exceptions, including: employees in the building and construction trades; employees seeking positions that require a federal background check or security clearance; and employees otherwise required to submit to drug testing by state or federal law.

SB 700: Don’t Ask, Don’t Tell

SB 700, which also went effect on January 1, 2024, prohibits employers from asking applicants about their prior cannabis use. The law also bars employers who learn about an applicant’s cannabis use from a criminal history search from using that information to discriminate against them.

Similar to AB 2188, SB 700 does not apply where the position sought requires the applicant to undergo a federal background check or receive security clearance, or when either state or federal law otherwise permit the employer to consider this information before hiring. SB 700 does not preempt state or federal laws requiring a company to test applicants for controlled substances.

By Dennis Hayes, SLOCEA General Counsel