Sheppard Mullin: High Protections on Information Relating to Employees’ Cannabis Use

JD Supra


On October 7, 2023, Governor Gavin Newson signed SB 700 into law, amending the California Fair Employment and Housing Act (FEHA). SB 700, effective January 1, 2024, expressly prohibits employers from requesting information from job applicants relating to their prior cannabis use.

This latest amendment to the FEHA follows prior changes to the law that were enacted last year. As we noted in our initial post, on September 18, 2022, California enacted Assembly Bill 2188 (AB 2188), which established Section 12954, prohibiting employers from penalizing employees or applicants for off-duty cannabis use if such use does not impair them at the workplace. AB 2188 also takes effect January 1, 2024.

In AB 2188, the Legislature declared that tetrahydrocannabinol (THC), the psychoactive chemical compound found in cannabis, can be stored in the body for as long as a month as a non-psychoactive cannabis metabolite after it is metabolized. The metabolites do not indicate that the individual is currently under the influence of cannabis, but only that they consumed cannabis in the last few weeks. Because the Legislature observed that the intent of drug tests is to identify employees who may be impaired, the Legislature declared that tests that detect the amount of non-psychoactive metabolites in the blood do not accomplish that goal as they do not correlate to impairment on the job. In addition, the Legislature noted that alternative drug testing devices that do not rely on the presence of non-psychoactive cannabis metabolites, but which can identify the presence of THC in an individual’s bodily fluids, are more readily available and better indicators of impairment.

SB 700 expands the protections brought about in AB 2188 to prevent employers from requesting that applicants provide information about their prior use of cannabis. However, it is important to note that SB 700 does not prohibit employers from inquiring about an applicant’s criminal history if otherwise permitted by law. Therefore, information about an individual’s prior cannabis use obtained from a legally obtained criminal history report, and if such information is otherwise lawful for an employer to consider in making employment decisions, would be exempt from the new Section 12954.

As a result of the enactment of SB 700, California employers should consider reviewing their job application process and any pre-employment drug screening protocols, as well as their policies and practices relating to drug screening in connection with hiring, discipline, and termination to ensure they will comply with the new law.

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