UNDER A NEW law, starting in 2024 employers in California will no longer be allowed to ask a job applicant about past cannabis use.

The legislation, SB 700, aims to protect workers from discrimination by barring employers from conducting pre-employment drug screenings for cannabis.

In addition, the new law, which takes effect Jan. 1, prohibits employers from penalizing workers for their offthe-clock cannabis use.

The new law will take effect at the same time as another measure, AB 2188, which was passed by the legislature in 2022.

That law makes it unlawful for employers to “discriminate” against a person in hiring, termination or any term or condition of employment based upon:

• Their use of cannabis off the job and away from the workplace.
• Failing a workplace drug test that only detects inactive cannabis compounds called metabolites, which are produced when breaking down tetrahydrocannabinol, the active ingredient in cannabis. These non-psychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.

SB 700 does not protect information regarding a person’s past marijuana use if it is permitted under certain state and federal laws.

Some jobs and sectors are exempt:

• The health care industry, which already has its own standard.
• The building and construction trades, and
• Jobs requiring a federal government background investigation or clearance.

Finally, the law does not allow workers to be impaired by marijuana on the job.

The takeaway

With both of these laws coming soon, you should take steps to adjust your workplace and hiring procedures to ensure compliance.

The laws amend the Fair Employment and Housing Act, and essentially create a new protected class against which employers may not discriminate. You will have to be diligent to ensure you don’t cross the line and ask about prior cannabis use.