Governor Newsom signed a new law this week restricting employers from asking about marijuana use and conducting certain drug tests for applicants and employees.  This Friday’s Five covers what the new law means for employers in the context of existing law governing employer’s ability to ask, test, and regulate employee’s use of marijuana in the workplace:

1. SB 700 – Prohibition on discrimination based on cannabis use

SB 700, signed by Governor Newsom on October 7, 2023, prohibits employers from asking applicants and employees about prior use of marijuana. Employers are also prohibited from using information regarding an applicant’s or employee’s prior cannabis use derived from a criminal background check, unless this is otherwise permitted under the State’s Fair Chance Law, other state laws, or other federal laws. 

SB 700 excludes certain employers from these requirements, including employees in the building and construction trades and employers who are required to conduct federal background investigation or clearances. 

The law is also clear that it does not prohibit employers from disciplining employees for being under the influence of cannabis or possessing cannabis while at the workplace. 

2. AB 2188: Discrimination in employment: use of cannabis

As a reminder, AB 2188, which was passed in 2022, amends Government Code section 12945 to make it illegal for employers to discriminate against employees who use cannabis off the job and away from the workplace. The law specifies that an employer is prohibited from discriminating against any person for hiring, termination, or any term or condition of employment based on the person’s use of cannabis off the job and away from the workplace. The law prohibits use of drug tests that test for “nonpsychoactive cannabis metabolites.” However, the law provides that there are alternative tests that are permissible, such as “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.” The bill does not create the right for the employee to be impaired while at work, does not apply to the building and construction trades, and does not preempt state or federal laws requiring employees to be tested.  AB 2188 law becomes effective on January 1, 2024.

3. Proposition 64

In 2016, California passed Proposition 64 legalizing marijuana. Proposition 64 expressly provides that employers may prohibit marijuana in the workplace, and will not be required to accommodate an employee’s use of marijuana. 

4. California’s Supreme Court ruling in Ross v. Ragingwire

In Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court examined the conflict between California’s Compassionate Use Act, (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and Federal law (which prohibits the drug’s possession, even by medical users).  The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.

5. Learn more about this and other new laws facing California employers in our October 26, 2023 webinar

My firm is hosting a webinar that will cover the new laws facing California employers in 2024 and what steps employers need to take to prepare for these new laws.  Registration for the webinar is here.