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California’s constantly expanding protections of employee cannabis use

August 16, 2023

The Compassionate Use Act questioned employers' right to prohibit marijuana use, as the Act permits medical marijuana for certain illnesses.
Financial, Executive and Professional Risks (FINEX)

After California passed the Compassionate Use Act, an employer’s right to prohibit marijuana use came into question.

The Compassionate Use Act permits the use of medical marijuana for patients with certain illnesses. Still, in 2008, the California Supreme Court, in Ross v. Ragingwire, held the employer does not need to accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. 123 P.3rd 930 (Cal. Sup. Ct. 2005). Ross reasoned that since the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

In 2016, California legalized marijuana for recreational use, which further complicated employee marijuana use at work. But, despite the change in marijuana’s legal status, the law reiterated that an employer could have a policy against the use of drugs while working or at the workplace.

More recently, in 2022, California adopted Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based on (1) a person’s use of cannabis off the job and away from the workplace, except for pre-employment drug screenings, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. Even so, the law does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace. This law takes effect on January 1, 2024.

The California legislature is considering a further expansion of rights pertaining to cannabis use under Senate Bill (SB) 700. SB 700 proposes prohibiting an employer from requesting information from an applicant for employment relating to prior use of cannabis. The bill specifies it does not prohibit an employer from asking about an applicant’s criminal history if otherwise permitted by law. The proposed amendment adds that the law will not preempt state or federal laws requiring applicants or employees to be tested for controlled substances. In a vote taken in May, the bill had the support of the majority, but it will still have to go through further legislative votes before it makes it to the governor’s desk. Most bills will not pass until the formal end of the legislative session, which is September 14, 2023. Even if SB 700 does not pass, employers should review AB 2188 to ensure drug testing and related policies are compliant.

In preparation for AB 2188 going into effect next year, employers should review policies related to drug use and discipline and drug testing procedures to ensure they comply with the new requirements. Should SB 700 also pass, employers will need to review the information requested from applicants that may relate to drug use.

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).


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Ellen E. Cohen
Principal, Jackson Lewis, P.C.

Theresa Panensky
West Region Leader, Claims Advocate of the Claims & Legal Group – FINEX
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