SB 700: Prohibits employment discrimination for past cannabis use

Since 2016, recreational marijuana use by adults 21 years and older has been legal in California. Marijuana use has steadily increased since then. During that time, the state has taken numerous steps both to destigmatize its use and to add protections for cannabis users. Employers were still permitted to discriminate on the basis of cannabis use, even if it was off the job and did not affect an employee’s job performance.

Last year, AB 2188 closed the loophole on an employer’s ability to ask about and take action against an employee’s off-the-job cannabis use. In 2023, through SB 700, the California Senate sought to further de-stigmatize cannabis use and created additional protections for cannabis users.

Introduced by Sen. Steven Bradford, SB 700 adds to the existing Fair Employment and Housing Act (FEHA) prohibitions on discrimination on the basis of cannabis use. The bill explicitly makes it unlawful for an employer to request information from a prospective employee relating to the prospective employee’s prior use of cannabis. Gov. Gavin Newsom signed SB 700 into law on Oct. 7, 2023, and it will take effect Jan. 1, 2024, alongside the additional FEHA protections from last year’s AB 2188.

SB 700 provides that adding these protections does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law. Nor does it preempt state or federal laws requiring applicants to be tested for controlled substances or mandating federal background checks or security clearances for certain positions.

It is already illegal in California for employers to discriminate against job applicants for prior use of alcohol and other legal drugs. SB 700 extends this protection to cannabis use.

Exceptions

Nothing in SB 700 prevents employers from using scientifically valid drug tests conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as screenings that test for current impairment.

Additionally, the law does not apply to employees in the building and construction trades, given the heightened safety concerns in these industries.

Takeaways

Employers should ensure they do not make any adverse employment decisions based on an applicant’s or employee’s previous cannabis use.

As a reminder, cannabis remains a controlled substance prohibited by federal law and several state laws outside of California. Before taking any action, employers should be cautious to ensure that no policy or decision on cannabis runs afoul of other applicable laws.

Additionally, employers should make sure their handbooks are up to date and that training for all personnel who interview prospective job candidates includes structure for what is and what isn’t allowed in job interviews.