California employers now prohibited from discriminating against applicants on the basis of prior cannabis use

In a significant development on October 7, 2023, Governor Gavin Newsom signed Senate Bill 700 (“SB 700”) into law, which amends California's Fair Employment and Housing Act (“FEHA”) to extend protection against discrimination to job applicants with a history of prior cannabis use. This new provision is set to become effective on January 1, 2024.

Currently, FEHA protects applicants and employees against workplace discrimination based on protected classes, such as age, ancestry, color, creed, denial of family and medical care leave, disability, marital status, medical condition, national origin, race, religion, sex, and sexual orientation. In 2022, AB 2188 expanded the protection to prohibit employers from engaging in any adverse employment action against employees for off-duty cannabis use.

Now, under SB 700, FEHA prohibits employers from requesting information from job applicants relating to their prior use of cannabis. Employers also may not use information about an applicant or employee’s prior cannabis use obtained from the applicant’s criminal history, unless the employer is permitted to consider or inquire about that specific type of information under other state or federal laws.

While this is a victory for workers in California, it is important to note that the law does not permit an employee to possess, be impaired by, or use, cannabis on the job, or affect 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 state or federal law or regulation. Further, the protection does not apply to employees in the building and construction trades and for applicants or employees for federal jobs requiring clearance from the U.S. Department of Defense.

For more information, please contact your labor counsel.