In 2022, the California Legislature passed and Governor Newsom approved, Assembly Bill 2188 (AB 2188). Effective January 1, 2024, AB 2188 amends California’s Fair Employment and Housing Act (“FEHA”) to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person if the discrimination is based on either of the following:
- The person’s use of cannabis off the job and away from the workplace; or
- 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.
This year, the California Legislature passed and the Governor approved, Senate Bill 700 (SB 700), which further modifies the law enacted by AB 2188 to also make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis. Further, a person’s prior cannabis use obtained from the person’s criminal history may only be considered or inquired into to the extent the employer is permitted to do so under California’s Fair Chance Act (Gov. Code, § 12952), or other state or federal law.
In the October 2022 blog post, New Law Prohibits Discrimination in Employment for Outside-of-Work Cannabis Use, LCW wrote about what employers need to know about AB 2188 in anticipation of its January 1, 2024, effective date, and recommended employers do the following in consultation with trusted legal counsel to prepare for AB 2188 to take effect:
- Assess which categories of employees, if any, may be exempt from AB 2188;
- Review drug and alcohol free workplace policies for any necessary changes to comply with AB 2188, and make those revisions in time to be adopted effective January 1, 2024; and
- Review and update any drug testing policies and practices for employees covered by AB 2188 to eliminate testing that screens for non-psychoactive cannabis metabolites, and instead use testing that only indicates impairment on the job, such as the presence of THC.
- Make those revisions in time to be adopted effective January 1, 2024.
In addition to the above and in consideration of SB 700, employers should further review and assess their hiring practices to ensure that they are not requesting from applicants any information relating to prior cannabis use, except where permitted under California’s Fair Chance Act or other state or federal law. Trusted legal counsel can assist employers in determining how AB 2188 and SB 700 impacts their practices and operations, and to help in taking the necessary steps to prepare for these two pieces of legislation to take effect.