California Will Prohibit Employers From Discriminating Against Off-site Marijuana Use

Written by Jeremy Mittman and Corey Singer

California employers will be prohibited from firing its workers who use marijuana off the job starting January 1, 2024 thanks to a bill that California Governor Gavin Newsom signed into law last month. 

Recreational marijuana use has been legal in California since 2016 when a majority of voters approved it.  In many circumstances, however, California employers can still lawfully refuse to hire someone because they use marijuana, and workers can still be disciplined or fired for marijuana use, even when that use takes place off the job, away from the worksite, and does not jeopardize safety or otherwise impair the worker’s performance.

Under the new law, it will be unlawful for California employers 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 marijuana off the job and away from the workplace.

Moreover, the law will protect individuals required to take a drug screening test in appropriate circumstances and test positive for “nonpsychoactive cannabis metabolites” in their hair, blood, urine, or other bodily fluids.  California employers cannot discriminate against such individuals on the basis of the positive drug test; for instance, they cannot fire someone just because the individual tested positive for marijuana-related substances in their urine.

While this law will reflect a significant expansion of California’s anti-discrimination statute, it does not give workers free reign to use marijuana on the job.  The law makes clear that California employers can restrict its employees from possession of, being impaired by, or using marijuana at work.  California employers must also continue to meet their obligations under state law to maintain a drug- and alcohol-free workplace.

This new anti-discrimination law included a few narrow exceptions:

1. It does not apply to an employee in the building and construction trades; and  

2. It does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applicable to other agencies.

The law additionally provides that it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding, or federal licensing-related benefits, or entering into a federal contract.   

Because marijuana possession and distribution remains a crime under federal law, there is a conflict between federal and California state law regulating marijuana.  Notwithstanding, California courts have consistently held that state laws permitting marijuana use are not preempted by federal law.   Moreover, because California has chosen to legalize marijuana-related activities by suspending state criminal law enforcement, rather than by requiring conduct unlawful under federal law, there is no direct conflict preemption; however, it remains to be seen how courts will address what some opponents to the law might attempt to characterize as a “conflict” with federal law.

We encourage California employers to review their anti-discrimination and drug testing policies to ensure that their practices will comply with the new law by the time it takes effect in 2024.

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