High protection of information related to employee cannabis use

On October 7, 2023, Governor Gavin Newsom signed into law SB700 Act amending the California Fair Employment and Housing Act (FEHA) went into effect. SB 700, effective January 1, 2024, expressly prohibits employers from requesting information from job applicants regarding their prior cannabis use.

The latest amendment to FEHA follows previous changes to the law that were introduced last year. As we noted in our introduction postOn September 18, 2022, California passed Assembly Bill 2188 (AB 2188), which established Section 12954, prohibiting employers from penalizing employees or applicants for off-duty use of cannabis if such use does not harm them in the workplace. AB 2188 also goes into effect on January 1, 2024.

In AB 2188, the legislature stated that tetrahydrocannabinol (THC), a psychoactive chemical found in cannabis, can be stored in the body for up to a month as a non-psychoactive cannabis metabolite after it is metabolized. Metabolites do not indicate that a person is currently under the influence of cannabis, only that they have used it in the last few weeks. Because the legislature noted that the purpose of drug testing is to identify employees who may be impaired, the legislature concluded that tests that detect the amount of nonpsychoactive metabolites in the blood fail to achieve this goal because they do not correlate with impairment on a job basis. Additionally, the Legislature noted that alternative drug testing devices that do not rely on the presence of non-psychoactive cannabis metabolites, but that can detect the presence of THC in an individual’s bodily fluids, are more readily available and provide better indicators of impairment.

SB 700 expands protections introduced in AB 2188 to prevent employers from requiring applicants to provide information about their earlier cannabis use. It is important to note, however, that SB 700 does not prohibit employers from asking about an applicant’s criminal history if the law requires otherwise. Therefore, information about an individual’s prior cannabis use obtained from a lawfully obtained criminal history report, if it would otherwise be lawful for an employer to consider such information in making employment decisions, would be excluded from the scope of new section 12954.

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