Legislative Update: California Prohibits Employer Probes into Cannabis Use During Hiring Process
Amongst the slough of bills signed by California Governor Gavin Newsom this season is one to add to the list of employer no-nos during the hiring process. This dovetails our recent article discussing the California Civil Rights Department’s updated regulations on employer use of criminal history in hiring.
As enacted, Senate Bill 700 amends Government Code section 12954 and makes it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis, adding to the existing California Fair Employment and Housing Act (FEHA) prohibition on discrimination. It also provides that information about a person’s prior cannabis use obtained from a person’s criminal history is subject to the general prohibition on discrimination on the basis of cannabis use, unless the employer is permitted to consider or inquire about that information pursuant to state or federal law. These changes take effect January 1, 2024.
To provide a little background on this legislation, California has allowed medical cannabis use since 1996, with voter approval of Proposition 215. Adult recreational cannabis use was approved on the 2016 ballot, and the Legislature subsequently enacted the Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to streamline and synthesize the licensing and regulatory regimes for medical and recreational cannabis. Until 2022, however, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and did not affect an applicant’s or employee’s job performance.
To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 in 2022, also effective January 1, 2024, making it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system. The bill exempted from its scope employers who require federal security clearances or whose cannabis usage may otherwise be at issue under federal law or hiring practices.
According to the author of SB 700, some employers also ask about applicants’ past cannabis use. To avoid any possible confusion or inadvertent discrimination, this bill expressly prohibits an employer from requesting information from an employee or applicant about their prior use of cannabis. The bill also makes clear that, if an employer obtains information about an employee or applicant’s cannabis use through the employee or applicant’s criminal history, they may not discriminate on the basis of that past use unless otherwise permitted by state or federal law. Additionally, the existing exceptions—such as allowing employers or potential employers to inquire about cannabis use for purposes of a federal background check—apply to the prohibition added by the bill.
Employers should be ready to adjust their hiring inquiries accordingly to avoid any legal missteps. Rosasco Law Group, APC is always available to help ensure your hiring practices meet current requirements. Call our office for a professional review today!