Although California law permits the recreational use of marijuana for those over 21 years of age, marijuana use remains a crime under federal law. Employers are therefore protected in firing persons who use marijuana or test positive for marijuana use, even when the use was prescribed by a physician to alleviate a disability: “The FEHA does not require employers to accommodate the use of illegal drugs.” (Ross v. Raging-Wire Telecommunications, Inc. (2008) 42 C4th 920, 926, 70 CR3d 382, 387.)
That, of course, may soon change. The California legislature recently passed Assembly Bill 2188 pursuant with the intention of making it unlawful for an employer in California to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
The new law states as follows:
It is unlawful 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:
- The person’s use of cannabis is off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, any term or condition of employment, or otherwise penalizing a person based on scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.
- An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
(a) Nothing in this section permits 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 in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.
(b) This section does not apply to an employee in the building and construction trades.
(c) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
(d) This section does not pre-empt 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 manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
(e) This section shall become operative on January 1, 2024.
Since Assembly Bill 2188 has not yet come into effect, it is difficult to predict what impact, if any, it will have on an employer’s right to terminate an employee for using marijuana. Since this area of law is ever-changing both employers and employees would do well to contact an experienced law firm for advice.
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