Updated Marijuana Antidiscrimination Workplace Law
California is at the forefront of cannabis-related legislation, with new laws set to take effect on January 1, 2024. These laws, known as SB 700 and AB 2188, bring about significant changes in the workplace, impacting both employers and employees. Employers must understand and adapt to these changes to ensure compliance and maintain a fair and progressive work environment.
Understanding SB 700 and AB 2188
Enhanced Employee Protections for Off-Duty Cannabis Use
SB 700 expands the California Fair Employment and Housing Act (FEHA) to protect applicants from discrimination based on prior cannabis use. Employers are now prohibited from requesting information about a job applicant’s history with cannabis. This law recognizes the potential for past cannabis use to unfairly impact hiring decisions and strengthens employee privacy rights.
Expansion of FEHA’s Anti-Discrimination Provisions
AB 2188 builds upon FEHA’s existing anti-discrimination provisions by extending protections to employees and applicants based on their use of cannabis outside of work. Employers cannot take adverse employment actions against employees for off-duty cannabis use, such as demotion, refusal to hire, or termination. However, this does not impinge upon an employer’s right to enforce drug-free workplace policies.
Drug Testing and Impairment Assessment
AB 2188 also redefines drug testing standards in the workplace. The focus is on active impairment rather than the presence of cannabis metabolites in the body. THC, the psychoactive component in cannabis responsible for impairment, is distinguished from nonpsychoactive metabolites. Employers must adopt testing procedures that identify active THC impairment, ensuring a more accurate assessment of an employee’s current job performance and safety concerns.
Employer Rights and Obligations
Maintaining a Drug-Free Workplace
While AB 2188 offers protections for off-duty cannabis use, employers can still maintain a drug-free workplace. This means that employees or applicants who are actively impaired at work or who bring cannabis onto the premises can be subject to disciplinary action or denied employment opportunities.
Exceptions to the Rule
AB 2188 includes specific exceptions to its provisions. It does not apply to employees in the building and construction trades, acknowledging the unique safety concerns in these industries. Employees who are required to undergo federal background investigations or security clearances are also exempt. The new legislation does not supersede existing state or federal laws that mandate controlled substance testing for certain job roles.
Steps for Employers to Ensure Compliance
To comply with the new cannabis-related legislation, employers must take proactive steps:
Policy Review and Update
Employers should review their current drug and alcohol policies to ensure they align with the requirements of AB 2188. Policies should clearly differentiate between permissible off-duty cannabis use and on-the-job impairment. Employers should also update testing procedures to focus on detecting active THC impairment.
Addressing Exceptions
If any of the exceptions to AB 2188 apply to specific employee groups within the company, policies should reflect these distinctions. Employers need to communicate these exceptions clearly to employees to avoid misunderstandings.
Application and Hiring Materials
Employers must revise job applications and other hiring materials to remove any inquiries about an applicant’s prior cannabis use. This aligns with the stipulations of SB 700, which prohibits employers from requesting information about an applicant’s history with cannabis.
Additional Information
- Employers should consider providing training to management and HR personnel on the new cannabis-related legislation to ensure proper implementation and compliance.
- It is advisable for employers to consult with legal counsel to ensure their policies and practices align with the requirements of SB 700 and AB 2188.
- Employers should regularly monitor updates and guidance from relevant government agencies regarding the implementation and interpretation of the new laws.
Conclusion
California’s new cannabis-related legislation brings about significant changes in employment law. Employers must understand the implications of SB 700 and AB 2188 to ensure compliance and create a fair and progressive work environment. By reviewing and updating policies, addressing exceptions, and revising application materials, employers can navigate this new legal terrain effectively. Staying informed about legal developments and adapting workplace policies will be essential for employers in California as societal attitudes toward cannabis continue to evolve.
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