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New California Marijuana Laws

26 Oct

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Update Applicable to:

All employers with 5 or more employees in total, and the law is applicable only to workers in California.

What happened?

California Governor has signed into law AB 2188, a bill which amends the Fair Employment and Housing Act (“FEHA”) by making it unlawful for an employer to discriminate against users of recreational marijuana within the employment context. Additionally, the Governor has signed SB 700, which makes it unlawful for an employer to discriminate against a job applicant based on information regarding prior use of cannabis.

What are the details?

AB 2188, effective from January 1, 2024, would establish that it is unlawful for an employer to discriminate against an individual in various employment aspects, such as hiring, termination, or any employment terms or conditions, or to impose penalties on an individual, under the following circumstances:

·         Discrimination is based on the individual’s use of cannabis outside of work and away from the workplace.

·         Exceptions to this protection include preemployment drug screening, as outlined in the bill, and employer-required drug screening tests that identify nonpsychoactive cannabis metabolites in the individual’s hair, blood, urine, or other bodily fluids.

·         Certain applicants and employees are exempt from the provisions of this bill, including:

o    Employees in the building and construction trades.

o    Applicants and employees in positions that necessitate a federal background investigation or clearance, as specified in the bill.

The bill explicitly states that it does not override state or federal laws that require applicants or employees to undergo controlled substance testing as a condition of employment, to receive federal funding or federal licensing-related benefits, or to enter into a federal contract.

For more information, please see the links below:

California Assembly Bill (“AB”) 2188

Law Firm: Article 1

California Senate Bill (SB 700)

What do employers need to do?

It is recommended by law firms such as the CDF firm, that California employers not exempt under the statute should review their drug screening policies, especially those related to marijuana, in the context of hiring, discipline, and termination to ensure compliance. Employers should consider removing pre-employment marijuana testing policies that use common testing methods for non-psychoactive cannabis metabolites to avoid potential liability under FEHA. Instead, they can consider using testing methods that assess impairment during interviews or while on duty or focus on screening for the psychoactive component of marijuana. It’s recommended that employers consult with their labor and employment counsel to ensure preparedness for compliance with AB 2188 in the upcoming year.

Need help understanding how changes to employment laws will affect your business?

Learn more about how Vensure's California PEO services can help you navigate complex employment laws and keep your business compliant.


This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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