Passed in 2022 and effective January 1, 2024, Assembly Bill 2188 creates Government Code section 12954 to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, for either:

(1) The person’s use of cannabis off the job and away from the workplace; or

(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, urine, or other bodily fluids.

Now Senate Bill 700, which will also become effective on January 1, 2024, amends Government Code section 12954 to make it unlawful for an employer to request information about a person’s prior cannabis use obtained from the person’s criminal conviction history is subject to the section 12954 restrictions unless the employer is permitted to consider or inquire about the information under other state or federal law. Thus, any questions about prior marijuana use must be omitted from job applications and job interviews.  Information about a person’s prior cannabis use obtained from the person’s criminal conviction history are exempt from the new law.

Government Code section 12954 is not intended to permit employees to possess or use marijuana on the job, nor will it affect the rights of employers to maintain a drug- and alcohol-free workplace. Rather, the focus of 12954 is on tetrahydrocannabinol (THC) and impairment of the individual.  THC is the chemical compound in cannabis that causes impairment and psychoactive effects.  After THC is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite.  These metabolites do not indicate that an individual is impaired, but only reveal whether an individual has consumed cannabis recently.

Based on the distinction between THC and metabolites, the legislation will not prohibit an employer from making employment decisions “based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” Thus, a drug test for THC that does not rely on the presence of nonpsychoactive cannabis metabolites can be used, as can impairment tests that measure a person against their own baseline performance.

Government Code section 12954 will not apply to an employee in the building and construction trades, and will not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance. Further, the law will not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws relating to receiving federal funding or federal licensing-related benefits, or entering into federal contracts.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2023. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.