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California Prohibits Employment Discrimination for Off-Duty Marijuana Use and MORE

Posted by Caleb A. Miller | Sep 27, 2022 | 0 Comments

Assembly Bill 2188

California has passed a bill that will prohibit the discrimination of employees based on their marijuana use after work hours. Currently, California has the Fair Employment and Housing Act, which prohibits discrimination, harassment and retaliation on the basis of a protected class (race, religion, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status). 

This act makes it unlawful for an employer to discrimination against a person in hiring, termination, the terms and conditions of employment or to otherwise penalize a person for their use of cannabis off the job and away from the workplace. However, this is not a greenlight for marijuana use and employer-required drug screening is still permitted. Employees in the building and construction trades; as well as federal jobs or those requiring a security clearance may still be prohibited from using marijuana at any time. It is important to note that being impaired while working in any profession is terminable conduct in most cases.  

Technology May Prove if you are 'High' On the Job

Previous drug tests used to identify if an employee is impaired showed only the presence of non-psychoactive cannabis metabolites in your body but could not determine if you were actually impaired on the job. These test could determine if you used marijuana recently, but not so recent that you are 'high' on the job. This science has improved, and employers now have access to multiple types of tests, called impairment tests, that measure an individual employee against their own baseline performance and identify the presence of THC in the bodily fluids.  Meaning, employers may be able to determine if you are 'high' on the job and if so, you are not protected by this new law. The science is continuing to develop and it may not be long before employers have a noninvasive method of determining impairment in real time. 

Things to Watch Out For

This bill does NOT permit employees to possess, be impaired by, or use cannabis on the job, to include during your lunch or rest break or affect the right of an employer to establishment or maintain a drug and alcohol free workplace. As stated above, the building and construction trades may still discriminate for Marijuana use, as the nature of the work is considered to be such that risks for an impaired employee are too great. As many people understand, the federal law regarding marijuana use at the time of writing this article has not changed and it is still a banned substance despite many states opening the door to medical and recreational use. 

The Good News

This bill takes effect on January 1, 2024, and the large majority of employers in California will be subjected to these laws. Meaning protection is on its way. 

Nine other Bills were passed alongside this anti-discrimination bill, all aimed towards the legalization of the use and sale of marijuana. Some notable inclusions are Senate Bill 1326, which created a process for California to enter into agreements with other states to allow cannabis transactions with entities outside of California. Keep in mind this does not necessarily allow interstate transactions, but opens the door for States to make those agreements with California. Senate Bill 1186 preempted local bans on medical cannabis delivers, expanding patient's access to legal regulated cannabis products; and Assembly Bill 1706 provides for Californians with old cannabis related convictions to have those convictions sealed. This may not be automatic and it may benefit to contact a criminal defense attorney, allowing would-be employees to apply for jobs without the worry of any stigma that a cannabis related conviction may have. 

Miller Wilmers APC - A Los Angeles Employment Law Firm

Although these laws have not yet taken effect, Marijuana use is often related to cultural norms, as well as used in the treatment of medical conditions. California's Fair Employment and Housing Act still provides protections on these bases and if you feel you have been discriminated in your employment for marijuana use, it is important to speak to a California employment attorney to determine the best path moving forward as these laws continue to develop.   

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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