Employers May Not Discriminate Against Californians Due to Off-the-Job or Past Cannabis Use Starting on January 1

Starting on January 1, 2024, most Californians are now protected by a Cal NORML-sponsored bill which states that employers may not refuse to hire, fire, or penalize an employee based on the results of hair or urine tests for marijuana. A second law disallows asking about past marijuana use by prospective employees. 

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The new law (AB 2188 – GC 12954) prohibits employers from discriminating against a person who has tested positive for non-psychoactive cannabis metabolites in their urine, hair, or bodily fluids. It allows employees who have experienced discrimination to institute civil action for damages and other relief against their employers.

The law does not interfere with employers’ right to maintain a drug-free workplace. It allows for other kinds of tests that can indicate actual impairment on the job, such as computer-based performance tests, and chemical tests for active THC in oral fluid, breath or blood that are a better indicator of recent use. Many major drug testing providers are offering urine tests that do not detect marijuana, and oral swab or breathalyzer tests, which are less invasive than urine or hair tests.

Not protected by the law are workers in the building and construction trades, and employees subject to federal drug-testing rules, like commercial truck drivers. Companies that accept federal grants or funding are often required to follow the Drug-Free Workplace Act, but this does not require drug testing, only disallowing drug use on the job. The federal government has approved oral-swab testing to replace urine testing for truck drivers and other federal workers, but has not yet approved any labs to process oral swab tests.

A second law, SB 700 (Bradford), amended GC 12954 to disallow employers from asking about past marijuana use. SB 700 also took effect on January 1, 2024 (along with AB 2188). There are exceptions in the law for employers who may ask about an applicant’s conviction history under  information under GC  12952 (the Fair Chance Act) or other state or federal law.

The reforms are the result of a multi-year effort by California NORML, the state chapter of the National Organization for the Reform of Marijuana Laws. Cal NORML director Dale Gieringer commented, “Testing or threatening to test bodily fluids for cannabis metabolites has been the most common way that employers harass and discriminate against employees who lawfully use cannabis in the privacy of their own homes. These new laws will end that practice without impacting workplace safety. Numerous studies have found that workers who test positive for cannabis metabolites have no higher risk of workplace accidents.”

Californians who have been discriminated against due to off-the-job cannabis use, whether via pre-employment screening or being disciplined or fired as an employee, can file a complaint with the CA Civil Rights Department, and contact Cal NORML to make a complaint and possibly be connected with a private attorney who could help file a claim, once administrative remedies have been exhausted and a right to sue has been established with the CRD.

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