On September 18, 2022, California passed a law prohibiting discrimination in employment due off-duty marijuana use. The law becomes effective on January 1, 2024. The law will prohibit employers from discriminating in their hiring, termination, employment terms or conditions, or otherwise penalizing an individual based on their off-duty marijuana use. Further, employers are restricted from using a positive test for marijuana as the sole consideration for adverse employment actions.
Employers are still allowed to restrict marijuana use on the job and maintain a drug and alcohol-free workplace. There are also exceptions to the law for employees working in the building and construction sectors, or those who are hired for jobs that require a federal government background investigation or security clearance. In addition, the law does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances that are receiving federal funding, federal licensing-related benefits, or are entering a federal contract.
Next Steps for Employers
Employers should review their pre-employment drug screening processes to ensure that marijuana use is no longer disqualifying unless they meet an exception under the law. Other marijuana testing (i.e., post-accident or reasonable suspicion) may also require more attention, and employers should review the law against their substance abuse and/or drug testing policies and make changes as needed, including deciding whether to test for marijuana at all.
Importantly, employers should remind employees of any existing prohibitions on marijuana use, possession and impairment during working hours, on employer premises and while using company equipment or other property.
Employers should consider providing training for human resource professionals and supervisors/managers on how to determine and address impairment during working hours.
