California Law Prohibits Employers from Asking Job Applicants About Prior Marijuana Use

California Governor Gavin Newsom has signed Senate Bill 700 (SB 700) into law which will make it unlawful for an employer in the Golden State to request information from an applicant for employment relating to the applicant’s prior use of marijuana. The law – which was approved by Governor Newsom on October 7, 2023 – will take effect on January 1, 2024. The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination and empowers the Civil Rights Department to investigate alleged unlawful practices. SB 700 will make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment if the discrimination is based upon:

• The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
• 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.

However, SB 700 does not protect information regarding a person’s past marijuana use if it is permitted under certain state and federal laws. The law does not apply to job applicants in the building and construction trades, in jobs requiring a federal government background investigation or clearance, and does not allow workers to be impaired by marijuana on the job. In a related marijuana discrimination law, Governor Newsom signed Assembly Bill 2188 (AB 2188) in September 2022 which “protects Californians from employment discrimination based on their use of cannabis off-the-clock and away from the workplace,” according to a story on the Governor’s website. Like SB 700, this law will also take effect on January 1, 2024. AB 2188 will prohibit employers from punishing workers who fail workplace drug tests that only detect inactive cannabis compounds called metabolites which are made when breaking down Tetrahydrocannabinol (THC). These nonpsychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. According to the law, THC “is the chemical compound in cannabis that can indicate impairment and cause psychoactive effects.” The law states that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites” and “tests that identify the presence of THC in an individual’s bodily fluids.” ClearStar is a leading global Human Resources technology company specializing in background checks, drug testing, and occupational health screening. ClearStar has teamed up with Current Consulting Group to offer employers drug screening compliance packages to help them avoid potentially costly exposure to legal liability. To learn more, contact ClearStar. © 2023 ClearStar. All rights reserved. – Making copies of or using any part of the ClearStar website for any purpose is prohibited unless written authorization is first obtained from ClearStar. ClearStar does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.