California’s New Cannabis Laws (AB 2188 and SB 700)

California has always been a pioneer when it comes to cannabis laws. California was the first state to legalize medical marijuana, and on January 1, 2024, California became one of the few states in the United States of America to enact workplace protections pertaining to cannabis use, as the ones outlined in Assembly Bill 2188 and Senate Bill 700. AB 2188 expands the anti-discrimination provisions of the Fair Employment and Housing Act (FEHA). On the other hand, SB 700 enhances the privacy rights of job applicants in the state, specifically regarding past marijuana use. Below is more on Assembly Bill 2188 and Senate Bill 700.

Understanding SB 2188

According to AB 2188, employers cannot discriminate against employees because of their use of cannabis off the job and away from work. California employers cannot fire, demote, or take other adverse employment actions against employees based on their use of cannabis outside of work.

Another significant change AB 2188 brought is requiring California employers to stop using the traditional drug tests that detect cannabis metabolites, such as saliva-based oral fluid tests. Under the new law, employers should use test procedures that screen for the presence of tetrahydrocannabinol (THC). This is the chemical compound found in cannabis that causes a person to become impaired. Cannabis metabolites can remain in the body long after effects have disappeared. According to AB 2188, employers should only conduct tests to determine whether an employee is under the influence while on duty. They shouldn’t administer tests with the intention of detecting a wider range of cannabis consumption, as traditional tests have been doing.

It is crucial for employees to note that AB 2188 does not permit the use or possession of marijuana on the job, even for medicinal purposes.

Understanding SB 700

Senate Bill 700 complements AB 2188. SB 700 and AB 2188 both took effect on January 1, 2024. SB 700 amended the Federal Employment and Housing Act to bar California employers from asking job seekers to share information about their prior use of cannabis. Employers are prohibited from asking about this information during interviews and on application forms. This prohibition is meant to ensure a more inclusive hiring process. SB 700 recognizes that an individual’s past cannabis use should not be a determining factor in their suitability for employment. By prohibiting employers from inquiring about applicants’ past cannabis use, SB 700 acknowledges the need to move away from outdated stigmas associated with cannabis use. Job seekers with a history of cannabis use are often considered irresponsible or unprofessional. Some employers even view applicants with a history of cannabis as criminals.

While AB 2188 and SB 700 introduced broad protections for workers who use cannabis outside of work and individuals with a history of cannabis use, there are some crucial exceptions that you need to be aware of. For example, some employees are not protected under AB 2188. More on this exception and others are discussed in the second part of this article.  

Contact a California Employment Lawyer

Do you have questions about AB 2188 or SB 700? Have your rights under AB 2188 or SB 700 been violated? Contact a California employment lawyer.