Expanded Workplace Protections Regarding Cannabis Use

New laws in 2024 expand workplace protections for employees regarding their current and past cannabis use. Nikki Mahmoudi and Tomiwa Aina review these changes, previewed in our 2024 Employment Law Update seminars, in this episode of California Employment News.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Hi, everyone. Thank you for joining us for this installment of California Employment News, an informative video resource offered by the Labor and Employment Group at Weintraub Tobin. My name is Nikki Mahmoudi, and I’m an associate in the group. I’m joined today by Tomiwa Aina, an associate in the group. Today we’re going to be discussing some new laws in 2024 are expanding workplace protections regarding current and past cannabis use. If you attended the second session of our employment law update, you may have heard us talk about this. Tomiwa, why don’t you start us off?

Thanks, Nikki. So one of the laws we discussed that went into, in fact, this year is AB2180. And according to this law, California employers are prohibited from discriminating against their applicants or employees in the hiring, termination, or in the terms and conditions of their employment based on their off-duty cannabis use or the results of an employer-required drug screening that detected non-psychoactive cannabis in their hair, blood, or urine or other bodily fluids. Now, one thing that’s important to note about is law is that an employer can still choose to not hire or can choose to penalize a person based on a scientifically valid pre-employment drug screening that was conducted through methods that don’t screen for non-psychoactive cannabis metabolites. The legislator noted that employers now have access to multiple types of tests that do not rely on the presence of non-psychoactive cannabis metabolites. THC is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects. Now, after THC is metabolized, it’s stored in the body as a non-psychoactive cannabis metabolites. Now, these non-psychoactive metabolites don’t indicate impairment, only that an individual has consumed cannabis in the last few weeks. And this test for non-psychoactive metabolites is what most employers have been using until recently.

Now, this new law, AB 2180, exempts certain applicants and employees from the build provisions, and such employees are the ones that are in the building and construction trades and the individuals in positions requiring a federal background investigation or clearance.

The law also doesn’t preempt state or Federal laws requiring applicants or employees to be tested for controlled substances as a condition of receiving federal funding or federal licensing related benefits or entering into a federal contract. So if you’re an employer that falls into one of these categories, you can still use the tests you’ve been using.

To test for non-psychoactive cannabis metabolids, or you can use impairment tests. Now, lastly, AB2180 also provides workplace protection for recreational and medical marijuana users, but it still allows employers to restrict cannabis use on the job. The law doesn’t allow employees to possess, to be impaired by, or to use cannabis on the job. Now, Nikki is going to speak a little bit about another law that expands workplace protections for cannabis users.

So I’ll be talking about SB700, which was effective January 1, 2024. And what SB700 did is it also provides workplace protections for marijuana users. It amends government code section 12954 to also make it unlawful for an employer to request information from a job applicant relating to the applicant’s prior use of cannabis unless otherwise required by state or federal law. So what this means is that an employer cannot discriminate against an employee or an applicant based on information regarding prior use of cannabis. That’s learned from a criminal history report unless otherwise permitted under applicable law. So moving forward, what employers want to make sure to do is review their policies and make sure they implement SB700 and also what Tomiwa discussed. Additionally, government code section 12950 and other regulations require California employers to display the California law prohibits workplace discrimination and harassment poster, and that’s required to be in a conspicuous space where employees gather. So an updated poster was recently issued and that does contain information regarding how, for employees who work with employers with five or more employees, California law offers protections against discrimination based on an employee or a job applicant’s use of cannabis off the job and away from the workplace, of course, subject to some possible exemptions. You can get a copy of it from the California Civil Rights department website.

Thank you, Nikki. Now that does it for today. You can also continue to follow our California Employment News on the blog at www.thelewblog.com, and wherever you listen to your favorite podcast. We’ll see you next time