Arent Fox Schiff: California Bans Employment Discrimination For Marijuana Use

ArentFox Schiff

California has enacted legislation broadly protecting employees from discrimination for the use of marijuana, which has been legal in the state since 2016. Governor Newsom signed Assembly Bill 1288 into law. It generally prohibits employers from discriminating “against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person” for using marijuana off-the-job and away from the workplace. It also prohibits relying on certain drug testing. The new law takes effect on January 1, 2024.

Previous Laws and Decisions on Marijuana and Employment

Through Proposition 215 in 1996, California legalized marijuana for medical reasons in certain instances. That initiative did not contain any provision requiring employer accommodation or prohibiting discrimination. In Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), the California Supreme Court held that an employer lawfully could refuse to employ an individual who failed a drug test, even if the positive test resulted from medical use authorized under Proposition 215. The court further held that employers are not required to permit or accommodate marijuana use as a reasonable accommodation under California’s Fair Employment and Housing Act (FEHA).

In 2016, California voters legalized marijuana through Proposition 64. While making dramatic changes in drug laws, the initiative did not change the legal landscape in employment law or drug testing. It also did not impact the Ross decision. Proposition 64 declared its intent to “[a]llow public and private employers to enact and enforce workplace policies concerning marijuana.” In Health and Safety Code section 11362.45, the initiative expressly provided that the measure shall not be “construed or interpreted to amend, repeal, affect, restrict or preempt” various existing laws, such as driving while under the influence. The measure further provided that it did not change “[t]he rights and obligations of public and private employers to maintain a drug-and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of the employer to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.” See Cal. Health & Safety Code § 11362.45(f).

Significantly, Proposition 64 did not prohibit discrimination against employees who use marijuana. In contrast, Proposition 19, a previous legalization measure that voters rejected in 2010, would have provided that “[n]o person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act … providing, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.” Now, with AB 1288, employers will have to deal with these issues.

AB 1288’s Protections and Limits

Starting in 2024, AB 1288 will bar employment discrimination based on two grounds: (1) the “use of cannabis off the job and away from the workplace,” or (2) the results of an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.”

Contrary to some reports, AB 1288 is not a wholesale ban on employers restricting employees’ marijuana use or testing for it. Rather, the new law focuses on protecting against discrimination based on the use of cannabis outside of work hours and the workplace.

The first protection in AB 1288 is simple enough: Employers cannot discriminate based on an individual’s off-the-clock cannabis use away from the workplace. It gives legal protection to this use of the substance, while the use of other legal products or substances alone does not enjoy legal protection against employment discrimination.

The second prohibition targets testing that detects nonpsychoactive cannabis metabolites, which are the metabolites left in the body after it metabolizes tetrahydrocannabinol (THC). These metabolites remain detectable for weeks, long after any psychoactive effect or impairment ends. The Legislature thus made findings and declarations in AB 1288 that metabolites “do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.” Drug tests typically seek to identify employees who may be impaired, but tests whose “results only show the presence of the nonpsychoactive cannabis metabolite . . . have no correlation to impairment on the job,” the Legislature concluded. It further declared that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites,” including impairment tests, which measure an individual employee “against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.”

The new law has several exceptions. Indeed, much of the bill’s language sets forth what AB 1288 does not do. First, it does not ban drug testing – nor even completely ban testing for marijuana use. Rather, AB 1288 expressly allows an employer to rely on “scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” As discussed, such testing only should identify any current impairment or active THC levels. AB 1288 allows an employer to consider a positive result on such testing, and to take action based on it.

AB 1288 further does not permit an employee “to possess, to be impaired by, or to use, cannabis on the job.” Nor does it affect “the rights and obligations of an employer to maintain a drug- and alcohol-free workplace,” as specified in Health and Safety Code section 11362.45, “or any other rights or obligations of an employer specified by federal law or regulation.”

In addition, AB 1288 does not apply to an employee “in the building and construction trades,” a term that the legislation did not define. The bill provides that it does not apply to positions requiring a federal government background check or security clearance. It also “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”

Added to the FEHA, AB 1288 grants off-duty marijuana use away from the workplace the same protections against discrimination as race, sex, religion, disability, and other characteristics. As part of the FEHA, AB 1288 will apply to employers with five or more employees. An individual may file a discrimination complaint with the California Civil Rights Department, resulting in an agency investigation. An applicant or employee also will be able to request a right-to-sue letter from the agency to file a lawsuit in court.

Takeaways For Employers

With AB 1288, California joins six other states (Nevada, Montana, New York, New Jersey, Connecticut, and Rhode Island) that protect off-duty cannabis use from employment discrimination. Although the law does not take effect until 2024, California employers should begin reviewing their policies and practices. First and foremost, the new law will prohibit employment discrimination based on off-duty marijuana use away from the workplace. Employers must clarify what still may be prohibited during working hours and on their premises, including maintaining a drug-free and smoke-free workplace and prohibiting employees from being under the influence while working, as still allowed.

AB 1288 supersedes the Ross decision at least in part, although the full extent may not be clear at this point. At a minimum, AB 1288 should prohibit any adverse action for off-duty medicinal marijuana use or based on a drug test that does not show any psychoactive cannabis metabolites or current impairment, even if an employer still does not have to accommodate marijuana use.

Employers still may conduct drug testing. California law generally allows drug testing of applicants without suspicion, but requires reasonable suspicion to test current employees. If AB 1288 applies, employers who conduct drug testing will need to use tests that detect current impairment or active THC levels. Testing that uses blood or saliva samples are more likely to be compliant with AB 1288. In general, employers should regard with high caution any test promising to screen for cannabis use over a longer period, as opposed to screening for recent use.

On all of these issues related to AB 1288, California employers should consult with their employment counsel.

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