California Amends Section 12954 of the Government Code

January 5, 2024 Accurate Background

California Amends Law Making it Unlawful To Discriminate Against Cannabis Use

Governor Newsom signed Senate Bill 700, making it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the person’s use of cannabis off the job and away from the workplace, except as specified. Additionally, this bill would make it unlawful for an employer to request information from an applicant relating to their prior use of cannabis or determining their prior use through their criminal history.

The Basics

Location: State of California
Legislation: SB 700
Type: Employment Discrimination: Cannabis Use
Effective: January 1, 2024

Key Takeaways

This bill prohibits an employer from requesting information from an employee or applicant about their prior use of cannabis.

According to the bill, 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 based on past use unless otherwise permitted by state or federal law.

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.

What does this mean to employers?

Beginning January 1, 2024, it is an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:

An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Gov. Code, § 12954(a), (f).)
- However, the Provision does not prevent an employer from engaging in an employment action based on a scientifically pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.

This law adds to the existing FEHA prohibition on discrimination based on cannabis use and exceptions, a provision making it unlawful for an employer to request information from an employee or applicant relating to the employee or applicant’s prior use of cannabis.

Information about a person’s prior cannabis use obtained from a person’s criminal history is subject to the general prohibition on discrimination based on cannabis use unless the employer is permitted to consider or inquire about that information pursuant to state or federal law.

Are there any exceptions?

Exceptions are as follows:

- The above does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace as specified under existing law;

- Employees in the building and construction trades;

- Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations;

- 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 way they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering a federal contract. (Gov. Code, § 12954(b)-(e).

Recommendations

We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. Accurate Background is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. Accurate Background makes no assurances regarding the accuracy, completeness, currency, or utility of the following information.