BlogLine

California expands employment discrimination claims to now include off work cannabis use

12/28/23

By: John K. Rubiner and Adam Manaa

On January 1, 2024, California Senate Bill 700 (“SB 700”) will go into effect. SB 700 amends the California Fair Employment and Housing Act (“FEHA”) to prohibit employers from taking any adverse action against an employee based upon that employee’s use of cannabis outside of the workplace. Every employer in California needs to be aware of this revision to FEHA and needs to prepare for it. 

Use of Cannabis Outside of Work

Specifically, SB 700 amends Cal. Gov’t Code Section 12954 to make it unlawful for an employer to discriminate against a person in hiring, terminating, or otherwise penalizing a person if the discrimination is based upon the person’s use of cannabis “off the job and away from the workplace.” The language of the bill gives rise to the implication that an employee’s use of cannabis at their place of work (even while not on the job) is not protected. It also implies that use of cannabis on the job (even while not at the workplace) will be unprotected by SB 700. 

Drug Testing 

In addition, SB 700 makes it unlawful for employers to take adverse action against a person based upon an employer-required drug screening test that finds the person to have nonpsychoactive cannabis metabolites (components stored in the body after THC is metabolized) in their hair, blood, urine, or other bodily fluids. Furthermore, the bill makes it unlawful for an employer to request information from an applicant relating to their prior use of cannabis. Taken together, these two provisions may spell the end of required drug testing for cannabis for the vast majority of employers in California. Given that employers will no longer be allowed to treat employment applicants differently based on a positive test for nonpsychoactive cannabis metabolites, the incentives for employers to conduct such testing will effectively be abolished.  

However, employers will not be prohibited from inquiring about an applicant’s criminal history if otherwise permitted by law (California has several restrictions on criminal history inquiries), meaning inquiring about any prior drug offenses will be permissible. 

Exemptions 

Importantly, there are several categories of employers and employees who are exempt from SB 700. Most significantly, employees hired for positions that require a federal government background investigation or security clearance will not be subject to SB 700’s new prohibitions. Furthermore, the bill explicitly states it is not intended to preempt state or federal laws requiring applicants or employees to be tested for controlled substances. This includes regulations requiring applicants to be tested as a condition of receiving federal funding or federal licensing-related benefits or entering into a federal contract or government employment. 

Additionally, the provisions prohibiting discrimination based upon use of cannabis off the job and away from the workplace as well as testing positive for nonpsychoactive cannabis metabolites will not apply to employees in the building or construction trades. However, the prohibition against employers asking about an employment applicant’s prior use of cannabis will still apply to those fields. 

Takeaways 

SB 700 creates three new prohibitions for cannabis use discrimination that employers need to be aware of: 

1. it prohibits discrimination based upon a person’s use of cannabis off the job and away from the workplace;  

2. it prohibits discrimination based upon an employer-required drug screening test that finds the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids; and 

3. it prohibits employers from requesting information from an applicant related to their prior use of cannabis.  

For additional information or questions, please contact John K. Rubiner at jrubiner@fmglaw.com, Adam Manaa at adam.manaa@fmglaw.com, or your local FMG attorney.