FEHA and Cannabis: What California Employers Need to Know in 2024 

On January 1, 2024, a new California law amending California’s Fair Employment and Housing Act (“FEHA”) will take effect. Under the new law, employers will be prohibited from discriminating against employees for off-duty marijuana use and/or an employer’s finding of certain types of cannabis metabolites in the results of a drug screening. After the law takes effect, California will join five other states (New York, New Jersey, Connecticut, Rhode Island and Montana) in protecting cannabis users from employment discrimination resulting from off-duty use of marijuana and related products.  

History of California Recreational Marijuana Laws 

In 2016, California voters passed Proposition 64, legalizing the use of cannabis and THC products throughout the state. While the passage of Prop. 64 wildly changed the legal landscape for California residents, it had little to no impact on California employment law. Indeed, Prop. 64 specifically gave employers the right to “enact and enforce policies regarding the use of marijuana.” Prop. 64 also did not prohibit an employer’s right to discriminate against an employee for their use of marijuana (legally or otherwise), and a 2008 California Supreme Court decision explicitly held that an employer could refuse to hire an employee who failed a drug screening due to the presence of marijuana on the results. 

AB 1288 Changes the Employment Laws Concerning Marijuana Use 

The new California law supersedes (or at least limits) the previous California Supreme Court decision concerning discrimination against employees who fail pre-employment drug screenings due to the “nonpsychoactive” presence of cannabis metabolites (those metabolites that may remain in the body for weeks – long after the intoxicating effects of use have worn off). The law also expressly limits the right of an employer to take adverse employment action against an employee for using marijuana off-site. In short, users of the substance are a legally protected class, in the same way sex, race, and other categories are protected from employment discrimination in California.  

What are the Exceptions to AB 1288? 

AB 1288 does not prohibit employers from conducting pre-employment drug screenings. The new law also does not even prohibit screening for marijuana use, so long as the employer uses a method of screening that does not screen for nonpsychoactive metabolites. Employers also still have the right to maintain a “drug and alcohol-free workplace” under AB 1288. This means employers can institute a policy prohibiting employees from using marijuana at work. Specifically, the law states that employees may be prohibited from “possess[ing], being impaired by, or us[ing] cannabis on the job.” So, employers with drug-free policies should not worry that their right to maintain a workplace free from the intoxication of drugs (including marijuana) has been impacted in any way.  

Employer Takeaways 

Employers should review their employment policies to ensure they are written in a way that does not discriminate against employees for off-duty marijuana use while maintaining the right to keep the workplace free from intoxicated individuals. Employers should also revise their training programs to indicate employees’ right to be free from discrimination for off-duty use, and that harassment is a form of discrimination and is also protected. Finally, make certain your drug screening policies do not use technology that reveals the presence of nonpsychoactive metabolites, and if they do, make certain employment decisions are not being made based upon their presence in an employee or prospect’s results.  

Syntrio strives to inform the public of changes in the law so that organizations can plan for them in advance of an effective date. We invite you to contact a member of our staff to see how Syntrio’s workplace harassment training products can help you best comply with the law in the states you may operate in the coming year. We look forward to partnering with you to help craft an effective strategy and keep your organization abreast of important changes in the law.