Illegal to Fire Employee for Marijuana Use Outside Workplace in California

A new California labor law promises to change how employers treat the use of marijuana outside of the workplace. This law will provide protections to recreational and medical cannabis users and prevent employment discrimination based on their use of marijuana with certain limitations. Here's what you should know about the new marijuana law from employment law attorney Steven M. Sweat.

On Sept. 18, 2022, Gov. Newsom signed into law California AB 2188. This law was added as an amendment to the California Fair Employment and Housing Act (FEHA) to make it illegal for employers to discriminate against applicants and employees based on their use of marijuana outside of work. The law will be effective on Jan. 1, 2024, so that employers will have time to make changes to their policies and drug testing procedures.

Medical marijuana has been legal in the state since the passage of the Compassionate Use Act in 1996. This proposition made it legal for people with certain health conditions to use marijuana for medical reasons. In 2016, California passed Proposition 64, which legalized recreational marijuana. While both of these laws legalized the use of marijuana by adults, neither provided employment protections for people who use marijuana.

In 2008, the California Supreme Court decided the case of Ross v. Ragingwire Telecommunications, 70 Cal.Rptr.3d 382 (2008). That case involved a man who was prescribed marijuana by his medical doctor to treat chronic pain. The man was fired from his job when a drug test revealed he was positive for tetrahydrocannabinol (THC). While the court noted that the Compassionate Use Act provides an exception for medical marijuana users against criminal prosecution, the justices held that the FEHA did not require employers to provide accommodations to workers who used medical marijuana. The California Supreme Court reasoned that accommodations were not required because marijuana is still illegal under federal law. This decision meant that employers could continue to refuse to hire applicants who test positive for marijuana on pre-employment drug tests and fire employees who test positive after being hired.

The new marijuana law will provide employment protections that did not previously exist for marijuana users, whether or not they use it recreationally or for medical reasons. When it becomes effective on Jan. 1, 2024, employers will no longer be allowed to fire employees or refuse to hire applicants solely based on their use of marijuana outside of work. However, there are a couple of exceptions that are important to understand.

Under the new marijuana law, it will be illegal for employers to discriminate against applicants or employees based on their use of marijuana outside of work. However, there are certain jobs that are exempt. The law also makes employment discrimination against applicants and employees based on drug tests illegal when the tests used only measure non-psychoactive marijuana metabolites.

Metabolites are substances that are left behind in the body after THC, the psychoactive component of marijuana, is broken down or metabolized. Non-psychoactive metabolites do not make people feel high, but can remain in the systems of frequent users for weeks after their last use. Most common drug tests that are used for employment drug screens only test for the presence of cannabis that has been recently metabolized instead of THC, the active ingredient that produces a high. Because of this, the California Legislature noted that tests that only check for the presence of metabolites instead of THC do not show that an applicant or employee is impaired and shouldn't be used to deny employment or terminate an employee.

The new law does not make drug tests for marijuana illegal. Instead, it directs employers to only use tests that measure THC levels in the blood instead of metabolites. Employers can also continue testing applicants and employees for the presence of other illicit substances. If an applicant or employee returns a positive result for metabolites, the employer won't be allowed to use the result as a basis for taking any adverse employment actions against them.

The law provides a couple of notable exceptions, including an exemption for employers hiring for positions within the building trades. However, it does not define which types of employers are considered to be included in the building trades.

Employers who are required to conduct federal background investigations for certain positions are also exempted as are those hiring for positions requiring security clearances.

Another exception to this law is that it does not protect employees and applicants from adverse employment actions when they use or possess marijuana at work. The law also doesn't protect applicants and employees who are impaired by marijuana in the workplace. An employer that reasonably suspects an employee is impaired by marijuana in the workplace can send them for a reasonable suspicion drug test. If it returns a positive result for THC, the employer can take disciplinary action.

There are questions about the types of tests employers can use to make employment decisions based on cannabis use. Hair tests measure marijuana metabolites as do urine tests. With urine tests, the presence of marijuana in someone's system is detected after it is metabolized and excreted from the body. By contrast, blood tests and saliva tests might measure active THC in the person's system and could be allowed as long as they are designed to only test for THC and not marijuana metabolites.

The law also states that employers can use other impairment tests to measure an individual against their regular performance levels. However, it does not define what an allowable impairment test might be.

Employers currently have a year to get ready for the new law. They should decide whether continued marijuana testing is appropriate by conducting risk-benefit analyses. They should also review their workplace drug testing and drug-free workplace policies to make any necessary changes and fully train and inform their human resources professionals about any new steps they need to adopt during the hiring process.

If an employer discriminates against an applicant or employee based on their marijuana use or positive drug test for marijuana metabolites, the applicant or employee will have the right to pursue a lawsuit under the FEHA. Since the marijuana law amended the FEHA, this means that marijuana users will enjoy the same protections against discrimination in the workplace enjoyed by people with protected characteristics, including race, religion, color, gender, gender identity, sexual orientation, national origin, and others.

Employers found to have unlawfully discriminated against applicants or employees for out-of-work marijuana use might have to pay damages, including attorney's fees, back pay, front pay, and more. Recreational and medical marijuana users in the state will enjoy employment protections for the first time when AB 2281 becomes effective next year.

If you are a recreational or medical marijuana user and would like more information about the new law and your rights, you should speak with an experienced employment lawyer at the law firm of Steven M. Sweat, APC. Attorney Sweat has been fighting for the rights of his clients since 1996 and offers a wealth of experience and litigation skills. To learn more, contact us today to schedule a free consultation at 866-966-5240.