New Employment Protections for Cannabis Users Now in Effect
By Lauren Mendelsohn
January 4, 2024
On January 1, 2024, new employment protections for cannabis users went into effect in California. Specifically, Government Code §12954, which codifies AB 2188 (2022 – Quirk) and SB 700 (2023 – Bradford), is now active and will prevent most employers from failing to hire, firing, or otherwise discriminating against in any term or condition of employment, an employee for testing positive for non-psychoactive metabolites of cannabis. An employee still cannot be impaired while working, and employers may enforce a drug-free workplace policy. Additionally, the law forbids employers from asking a job applicant about their past cannabis use.
The protections of Gov. Code §12954 do not apply to employees who require a federal background investigation or security clearance, nor to employees in the building and the construction industry. Furthermore, Gov. Code §12945 does not supersede other laws that require controlled substance testing as a condition of receiving federal funding or entering into a federal contract.
California NORML has created some fact sheets on this, which are included below.
The full text of Government Code §12945 is below.
(a) (1) Except as specified in subdivision (c), it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(A) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
(B) 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.
(2) This subdivision does not apply to an employee in the building and construction trades.
(b) Except as specified in subdivision (c), it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.
(c) Information about a person’s prior cannabis use obtained from the person’s criminal history is subject to subdivisions (a) and (b), unless the employer is permitted to consider or inquire about that information under Section 12952 or other state or federal law.
(d) This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by state or federal law or regulation.
(e) This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
(f) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
(g) This section shall become operative on January 1, 2024.
Employers and employees alike should be aware of this new restriction.
This information is provided as a pubic educational service and is not intended, nor should be construed, as legal advice. For specific questions regarding cannabis and employment rights in California, contact the Law Offices of Omar Figueroa at info@omarfigueroa.com or 707-829-0215 to schedule a confidential consultation.