Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make it unlawful for an employer to request information from an applicant for employment relating to the applicants prior use of cannabis, as specified. Under the bill, information about a persons prior cannabis use obtained from the persons criminal history would be exempt from the above-described existing law and bill provisions relating to prior cannabis use if the employer is permitted to consider or inquire about that information under a specified provision of the California Fair Employment and Housing Act or other state or federal law.

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make it unlawful for an employer to request information from an applicant for employment relating to the applicants prior use of cannabis, as specified. Under the bill, information about a persons prior cannabis use obtained from the persons criminal history would be exempt from the above-described existing law and bill provisions relating to prior cannabis use if the employer is permitted to consider or inquire about that information under a specified provision of the California Fair Employment and Housing Act or other state or federal law.

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make it unlawful for an employer to request information from an applicant for employment relating to the applicants prior use of cannabis, as specified. Under the bill, information about a persons prior cannabis use obtained from the persons criminal history would be exempt from the above-described existing law and bill provisions relating to prior cannabis use if the employer is permitted to consider or inquire about that information under a specified provision of the California Fair Employment and Housing Act or other state or federal law.

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make it unlawful for an employer to request information from an applicant for employment relating to the applicants prior use of cannabis. cannabis, as specified.

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make a nonsubstantive change to these provisions. make it unlawful for an employer to request information from an applicant for employment relating to the applicants prior use of cannabis.

Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the persons use of cannabis off the job and away from the workplace, except as specified.

This bill would make a nonsubstantive change to these provisions.

 UNFINISHED BUSINESS  

Bill No: SB 700

Author: Bradford (D)

Amended: 9/1/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-2, 4/11/23

AYES: Umberg, Allen, Ashby, Laird, McGuire, Min, Wiener

NOES: Wilk, Niello

NO VOTE RECORDED: Durazo, Stern

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 3-0, 4/26/23

AYES: Cortese, Laird, Smallwood-Cuevas

NO VOTE RECORDED: Wilk, Durazo

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SENATE FLOOR: 29-9, 5/30/23

AYES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NOES: Dahle, Grove, Hurtado, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Alvarado-Gil, Rubio

ASSEMBLY FLOOR: 59-8, 9/13/23 - See last page for vote

SUBJECT: Employment discrimination: cannabis use

SOURCE: Author

DIGEST:

This bill adds to the prohibitions under the Fair Housing and Employment Act (FEHA), set to take effect January 1, 2024, on employment discrimination on the basis of an employee’s or potential employee’s cannabis use, to prohibit an employer from requesting information about an employee or applicant’s past cannabis use, subject to specified exceptions.

Assembly Amendments

modify the provision addressing when an employer or potential employer may discriminate on the basis of prior cannabis use obtained through the employee’s or applicant’s criminal history, to clarify that they may do so only where authorized by other state or federal law.

ANALYSIS:

Existing law:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., article I, § 1.)
2. Establishes the Compassionate Use Act (CUA) of 1996, also known as Proposition 215, which protects patients and their primary caregivers from criminal prosecution or sanction for obtaining and using marijuana for medical purposes upon the recommendation of a physician, with the goal of ensuring that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician, as specified. (Health & Saf. Code, § 11362.5.)
3. Authorizes, pursuant to Proposition 16 and subsequent Legislative measures, persons aged 21 and older to possess specified quantities of cannabis, products containing cannabis, and cannabis plants for personal use. (Health & Saf. Code, §§ 11362.1.)
4. Provides that 3) does not override laws prohibiting the operation of a vehicle while impaired by a controlled substance, laws prohibiting the use of cannabis while within a prison or other carceral facility, laws establishing that it would constitute professional malpractice or negligence to undertake any task while impaired, or laws allowing any state or local entity or private individual to prohibit or restrict the use of cannabis on their property. (Health & Saf. Code, § 11362.45.)
5. Makes it an unlawful employment practice, under the Fair Employment and Housing Act (FEHA), for an employer to refuse to hire, discharge from employment, or otherwise discriminate against a person in compensation or in the terms, conditions, or privileges of employment on account of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. (Gov. Code, § 12940(a).)
6. Makes, beginning January 1, 2024, it an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
   1. The person’s use of cannabis off the job and away from the workplace; this provision does not prevent an employer from engaging in an employment action based on a scientifically preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
   2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Gov. Code, § 12954(a), (f).)
7. Provides exceptions and clarifications to 6), as follows:
   1. Provides that 6) does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace as specified under existing law.
   2. Provides that 6) does not apply to an employee in the building and construction trades.
   3. Provides that 6) does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations.
   4. Provides that 6) does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract. (Gov. Code, § 12954(b)-(e).)

This bill:

1. Adds, to the existing FEHA prohibition on discrimination on the basis of cannabis use and exceptions, a provision making it unlawful for an employer to request information from an employee or applicant relating to the employee or applicant’s prior use of cannabis.
2. Provides that, notwithstanding 1), information about a person’s prior cannabis use obtained from a person’s criminal history is subject to the general prohibition on discrimination on the basis of cannabis use, unless the employer is permitted to consider or inquire about that information pursuant to state or federal law.
3. Makes technical and nonsubstantive conforming changes.

Comments

California has permitted medical cannabis use since 1996, when the voters approved Proposition 215.^[1] Adult recreational cannabis use was approved by the voters in 2016,^[2] and the Legislature subsequently enacted the Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to streamline and synthesize the licensing and regulatory regimes for medical and recreational cannabis.^[3] Until 2022, however, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and did not affect an applicant’s or employee’s job performance.

To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 (Quirk, Ch. 392, Stats. 2022), which made it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system. The bill exempted from its scope employers who require federal security clearances or whose cannabis usage may otherwise be at issue under federal law or hiring practices.

According to the author, some employers also ask about applicants’ past cannabis use. To avoid any possible confusion or inadvertent discrimination, this bill expressly prohibits an employer from requesting information from an employee or applicant about their prior use of cannabis. The bill also clarifies that, if an employer obtains information about an employee or applicant’s cannabis use through the employee or applicant’s criminal history, they may not discriminate on the basis of that past use unless otherwise permitted by state or federal law. Additionally, the existing exceptions—such as allowing employers or potential employers to inquire about cannabis use for purposes of a federal background check—apply to the prohibition added by the bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, this bill presents costs of approximately $252,000 in fiscal year 2024-25 and $250,000 annually thereafter to the Civil Rights Department for two additional staff positions to handle intakes and investigations related to prohibited information requests (General Fund).

SUPPORT: (Verified 9/13/23)

Americans for Safe Access

California Cannabis Industry Association

California Employment Lawyers Association

California NORML

The Parent Company

United Food & Commercial Workers Western States Council

OPPOSITION: (Verified 9/13/23)

None received

ARGUMENTS IN SUPPORT: According to California NORML:

California NORML wishes to express our support for SB 700 (Bradford), which clarifies the intent of California’s law banning employment discrimination for cannabis use off the job. That law, which we sponsored last year (AB 2188 Quirk – GC 12954), makes it unlawful for employers to discriminate against workers in hiring or employment based on their “use of cannabis off the job and away from the workplace,” effective Jan 1, 2024.

It has been brought to our attention that some employers have a policy of asking prospective employees about their prior use of cannabis. This practice is clearly inconsistent with the intent of AB 2188, since prior use of cannabis is irrelevant to a worker’s present use of cannabis on the job or in the workplace.

SB 700 addresses this problem by explicitly making it unlawful for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis.”

SB 700 preserves other provisions in AB 2118, such as exemptions for employers subject to federal regulation or in the construction industry.

ASSEMBLY FLOOR: 59-8, 9/13/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Rendon, Reyes, Luz Rivas, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Megan Dahle, Davies, Dixon, Vince Fong, Gallagher, Joe Patterson, Sanchez, Ta

NO VOTE RECORDED: Alanis, Bauer-Kahan, Calderon, Chen, Essayli, Flora, Gabriel, Lackey, Muratsuchi, Jim Patterson, Quirk-Silva, Ramos, Rodriguez

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

9/14/23 10:02:43

**** END ****

1. Compassionate Use Act (Prop. 215), as approved by voters, Gen. Elec. (Nov. 5, 1996). ↑

2. The Control, Regulate, and Tax Adult Use of Marijuana Act (Prop. 64), as approved by voters, Gen. Elec. (Nov. 8, 20216). ↑

3. SB 94 (Senate Committee on Budget and Fiscal Review, Ch. 27, Stats. 2017). ↑

SENATE THIRD READING

STR Bill Id:SB 700

Author:(Bradford)

As Amended Ver:September 1, 2023

Majority vote

SUMMARY

Provides that it is unlawful under the Fair Employment and Housing Act (FEHA) for an employer to request information from an applicant for employment relating to the applicant's prior use of cannabis unless the employer is permitted to consider or inquire about that information under the Fair Chance Act or other state or federal law.

Major Provisions

See summary.

COMMENTS

The movement to legalize and regulate the non-medical use of cannabis is gaining momentum across the United States. As of last year, 18 states and a number of territories have enacted laws to regulate cannabis for adult non- medical use.^[1] In the employment context, many states have moved to grant employees some level of protection for medical use. Some states, like Delaware, have created employee protections in their medical cannabis statutes^[2] while others have favored requiring employers to accommodate the medical use of cannabis under human rights statutes. New York, Arizona, Minnesota, and Illinois, have enacted laws that specifically require an employer to provide medical cannabis accommodations.^[3]

According to the Author

"SB 700 strengthens existing law to protect employees and prospective applicants from employment discrimination based on legal cannabis use. Last year, the Legislature made it unlawful for an employer to discriminate against a person in hiring, termination, or conditions of employment because of the person's off-the-job cannabis usage.

SB 700 explicitly makes it unlawful for employers to request information from an applicant relating to their prior use of cannabis. This bill preserves the provisions of AB 2188, including exemptions for employees subject to a federal background check or in the construction industry. It does nothing to change existing law pertaining to testing for cannabis and cannabis use on the job; ensuring employers can maintain a drug-free workplace."

The author further states that the bill "promotes equity by ensuring that individuals are not discriminated against solely for their legal and recreational use of cannabis. The war on drugs and the state's prohibition on cannabis use had significant consequences for underserved and marginalized communities in particular, by criminalizing individuals who used cannabis recreationally and limiting their employment opportunities. SB 700 helps protect these individuals from further employment discrimination and increase their opportunities for employment."

Arguments in Support

California NORML is in support and states, "It has been brought to our attention that some employers have a policy of asking prospective employees about their prior use of cannabis. This practice is clearly inconsistent with the intent of AB 2188, since prior use of cannabis is irrelevant to a worker's present use of cannabis on the job or in the workplace.

SB 700 addresses this problem by explicitly making it unlawful for employers to "request information from an applicant for employment relating to the applicant's prior use of cannabis."

SB 700 preserves other provisions in AB 2188, such as exemptions for employers subject to federal regulation or in the construction industry.

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

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee costs of approximately $252,000 in fiscal year 2024-25 and $250,000 annually thereafter to the Civil Rights Department for two additional staff positions to handle intakes and investigations related to prohibited information requests (General Fund).

VOTES

SENATE FLOOR: 29-9-2

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Dahle, Grove, Hurtado, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Alvarado-Gil, Rubio

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Kalra, Flora, Chen, Haney, Ortega, Reyes, Ward

ASM JUDICIARY: 8-2-1

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, McKinnor

NO: Dixon, Sanchez

ABS, ABST OR NV: Essayli

ASM APPROPRIATIONS: 12-3-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Weber, Wilson

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Soria

UPDATED

VERSION: September 1, 2023

CONSULTANT: Megan Lane / L. & E. / (916)319-2091 FN: 0001550

1. National Conference of State Legislatures, "State Medical Cannabis Laws," accessed on April 9, 2022. ↑

2. DEL. CODE ANN. TIT. 16 Section 4905A. ↑

3. Gregory A. Hearing and Michael A. Balducci, "Medical Marijuana's Effect on Employment Law: The Highs, The Lows, and The Unanswered Questions," 91 Fla. Bar. J. 22, 2017. ↑

Date of Hearing: August 23, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 700

Author:(Bradford) – As Amended Ver:April 13, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes it unlawful under the Fair Employment and Housing Act (FEHA) for an employer to request information from a job applicant regarding the applicant’s prior use of cannabis.

However, this prohibition does not preempt state or federal laws requiring an applicant to be tested for controlled substances, nor is an employer prohibited from asking about an applicant’s criminal history otherwise permitted by law.

FISCAL EFFECT:

Costs of approximately $252,000 in fiscal year 2024-25 and $250,000 annually thereafter to the Civil Rights Department for two additional staff positions to handle intakes and investigations related to prohibited information requests (General Fund).

COMMENTS:

1. Purpose. According to the author:

SB 700 strengthens existing law to protect employees and prospective applicants from employment discrimination based on legal cannabis use. Although recent changes to state law have prohibited employers from discriminating based on one’s cannabis use off the job, clarity is required to ensure that prospective applicants are not being dissuaded or rejected for using cannabis in a legal and responsible way.

This bill is supported by the California Employment Lawyers Association and cannabis groups.

1. Cannabis Testing in the Workplace. Despite legalization of adult-use cannabis in California by Proposition 64 (2016), testing for cannabis use is permitted in both public and private workplaces and is mandated in numerous federal workplaces. According to the Mayo Clinic, metabolites can be detected in a user’s body for up to three days after a single use, and up to 10 days for regular users, despite the user no longer being under the influence. Thus, testing a person for the presence of metabolites does not prove whether the person is currently impaired.

AB 2188 (Quirk), Chapter 392, Statutes of 2022, expanded FEHA to prohibit employers from discriminating against a person in hiring, termination, or terms and conditions of employment because of either the person’s use of cannabis away from the workplace or a cannabis drug-screening test that identified non-psychoactive cannabis metabolites. This bill further expands FEHA to prohibit employers from requesting information from a job applicant regarding past cannabis use.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: July 5, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

SBPCA Bill Id:SB 700

Author:(Bradford) – As Amended Ver:April 13, 2023

SENATE VOTE: 29-9

SUBJECT: EMPLOYMENT DISCRIMINATION: CANNABIS USE

KEY ISSUE: IN ORDER TO CLARIFY THE SCOPE OF EXISTING LAW, SHOULD EMPLOYERS BE EXPLICITLY PROHIBITED FROM REQUESTING INFORMATION RELATING TO AN APPLICANT’S PRIOR USE OF CANNABIS?

SYNOPSIS

Marijuana use has been legal in California for medical purposes since 1996, and for all recreational purposes by adults 21 years or older since 2016. Since then, reports detail the drug’s popularity, estimating that nearly 20% of all adults in the state engage in marijuana use. In 2016, California voters enacted Proposition 64, the Adult Use of Marijuana Act, which legalized personal use and cultivation of marijuana for adults 21 years and older. Last year, the Legislature passed and the Governor signed AB 2188 (Quirk, Ch. 392, Stats. 2022), which expanded the Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against a person in hiring, termination, or terms and conditions of employment either because of the person’s use of cannabis away from the workplace or a cannabis drug-screening test that identified nonpsychoactive cannabis metabolites.

This bill makes it an unlawful employment practice for an employer to request information from an applicant regarding their past use of cannabis. This bill is supported by Americans for Safe Access, the California Cannabis Industry Association, the California Employment Lawyers Association, California Norml (UNREG), and The Parent Company. There is no known opposition. This bill was previously heard by the Assembly Committee on Labor and Employment and passed out on a vote of 7-0.

SUMMARY: Prohibits an employer from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis, except as specified.

EXISTING LAW:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (California Constitution, Article I, Section 1.)
2. Makes it an unlawful employment practice, under the Fair Employment and Housing Act (FEHA), for an employer to refuse to hire, discharge from employment, or otherwise discriminate against a person in compensation or in the terms, conditions, or privileges of employment, on account of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. (Government Code Section 12940 (a).)
3. Defines employer under FEHA to mean any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities except a religious organization or a corporation not organized for private profit. (Government Code Section 12926.)
4. Beginning January 1, 2024, makes it an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
   1. The person’s use of cannabis off the job and away from the workplace; this provision does not prevent an employer from engaging in an employment action based on a scientifically pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
   2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Government Code Section 12954 (a), (f).)
5. Exempts both of the following from the prohibition in 4):
   1. Applicants or employees hired for positions that require a federal government background investigation or security clearance, as specified;
   2. An employee in the building and construction trades. (Government Code Section 12954 (c – d).)
6. Authorizes, pursuant to Proposition 16 and subsequent Legislative measures, persons aged 21 and older to possess specified quantities of cannabis, products containing cannabis, and cannabis plants for personal use. (Health & Safety Code Section 11362.1.)
7. States that nothing in the Adult Use of Marijuana Act (AUMA) amends or affects the rights and obligations of employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law. (Health and Safety Code Section 111362.45.)
8. Establishes the Compassionate Use Act (CUA) of 1996, also known as Proposition 215, which protects patients and their primary caregivers from criminal prosecution or sanction for obtaining and using marijuana for medical purposes upon the recommendation of a physician, with the goal of ensuring that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician, as specified. (Health and Safety Code Section 11362.5.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Marijuana use has been legal in California for medical purposes since 1996, and for all recreational purposes by adults 21 years or older since 2016. Since then, reports detail the drug’s popularity, estimating that nearly 20% of adults in the state engage in marijuana use. (Marijuana Use Among California Adults, California Department of Public Health (2020) available at: https://www.cdph.ca.gov/Programs/CCDPHP/sapb/CDPH%20Document%20Library/Factsheet_Marijuana_Use_Among_CA_Adults-ADA.pdf.) Particularly since 2016, marijuana has assumed a role similar to alcohol in our society, becoming commonplace as a regular form of adult recreation.

A brief history of cannabis in California and cannabis testing in the workplace. The use of cannabis in California was first authorized for medical patients, with a valid prescription from a doctor, with the approval of Proposition 215 known as the Compassionate Use Act. In 2003, the Legislature stepped into the fray and enacted the state’s Medical Marijuana Program by passing aptly numbered SB 420 (Vasconcellos) Chap. 875, Stats. 2003. The Medical Marijuana Program provided for a voluntary medical marijuana patient card, which could be used to verify that the patient or their caregiver had state authorization to cultivate, possess, transport, or use medicinal cannabis. More than a decade later in 2016, California voters enacted Proposition 64, the Adult Use of Marijuana Act, which legalized personal use and cultivation of marijuana for adults 21 years and older.

Last year, the Legislature passed and the Governor signed AB 2188 (Quirk, Ch. 392, Stats. 2022), which expanded the Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against a person in hiring, termination, or terms and conditions of employment either because of the person’s use of cannabis away from the workplace or a cannabis drug-screening test that identified nonpsychoactive cannabis metabolites. The bill exempted applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the Department of Defense or equivalent regulations for other agencies, and specified that it did not preempt existing statutory testing requirements on the state or federal level. The bill also delayed implementation until January 1, 2024. According to the author:

SB 700 strengthens existing law to protect employees and prospective applicants from employment discrimination based on legal cannabis use. Although recent changes to state law have prohibited employers from discriminating based on one’s cannabis use off the job, clarity is required to ensure that prospective applicants are not being dissuaded or rejected for using cannabis in a legal and responsible way

This bill makes it is an unlawful employment practice for an employer to request information from an applicant regarding their past use of cannabis. Amendments taken in a previous Committee specify that the prohibition does not limit an employer’s ability to inquire about an applicant’s criminal history if otherwise permitted by law. While last year’s AB 2188 did not explicitly prohibit employers from inquiring into an applicant’s past marijuana use, it seems reasonable to assume that last year’s bill would have contemplated such inquiry as antithetical to its underlying intent. There are arguably no non-discriminatory reasons for an employer to inquire into an applicant’s past use of marijuana – the purpose for asking such a question during an application process would most likely be to make a hiring determination on the basis of the applicant’s response. Since existing law prohibits an employer from discriminating against an employee or applicant based on their marijuana use, the specific prohibition proposed by the current measure appears to be a reasonable clarification consistent with the intent of the previous legislation.

The bill also makes clarifying changes to existing exceptions for specified industries. Existing law states that employees in the building and construction trades are exempt from the prohibition against discrimination based on their use of cannabis away from the workplace or the results of a cannabis metabolite test. The current bill makes clarifying changes to the existing statute to specify that the exemption applies only to the prohibition against discrimination, and not to the additional prohibition against inquiring into the applicant’s past use of marijuana. The distinction seems a reasonable approach – employers in the building and construction trades often face heightened safety concerns yet those safety concerns do not arise prior to an applicant’s interview. Therefore, there does not seem to be a need for distinct treatment for this protection against an employer’s inquiry into an applicant’s past marijuana use. Additionally, the new prohibition is subject to the existing language which specifies that the section’s protections do not preempt federal laws requiring applicants or employees to be tested for controlled substances, including laws or regulations requiring applicants to be tested as a condition of receiving federal funding or federal licensing-related benefits, or entering into a federal contract. To the extent any employer, including one within the building and construction trades, is subject to such regulations they may be exempted from the bill’s proposed new prohibition.

ARGUMENTS IN SUPPORT: This bill is supported by Americans for Safe Access, the California Cannabis Industry Association, the California Employment Lawyers Association, California Norml (UNREG), and The Parent Company. In support of the measure California Norml submits the following:

It has been brought to our attention that some employers have a policy of asking prospective employees about their prior use of cannabis. This practice is clearly inconsistent with the intent of AB 2188, since prior use of cannabis is irrelevant to a worker’s present use of cannabis on the job or in the workplace.

SB 700 addresses this problem by explicitly making it unlawful for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis.”

SB 700 preserves other provisions in AB 2118, such as exemptions for employers subject to federal regulation or in the construction industry.

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

REGISTERED SUPPORT / OPPOSITION:

Support

Americans for Safe Access
California Cannabis Industry Association
California Employment Lawyers Association
California Norml (UNREG)
The Parent Company

Opposition

None on file

Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334

Date of Hearing: June 28, 2023

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

SBPCA Bill Id:SB 700

Author:(Bradford) – As Amended Ver:April 13, 2023

SENATE VOTE: 29-9

SUBJECT: Employment discrimination: cannabis use

SUMMARY: Provides that it is unlawful under the Fair Employment and Housing Act (FEHA) for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis. An employer is not prohibited, however, from inquiring about an applicant’s criminal history if otherwise permitted by law.

EXISTING LAW:

1. Establishes FEHA which protects the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Gov. Code § 12921 (a).
2. Prohibits, under the provisions of FEHA, various forms of employment discrimination, including discharging or refusing to hire or to select for training programs any person based on their protected status. Gov. Code §12940 et seq.
3. Defines employer under FEHA to mean any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities except a religious organization or a corporation not organized for private profit. Gov. Code § 12926 (d).
4. Provides, beginning January 1, 2024, that it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for preemployment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. Gov. Code §12954(a).
5. Provides that the prohibition in 4) above does not apply to the following:
   1. Applicants or employees hired for positions that require a federal government background investigation or security clearance, as specified.
   2. An employee in the building and construction trades. Gov. Code §12954(c-d).
6. States that the prohibition in 4) above does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment. Gov. Code §12954(e).

FISCAL EFFECT: According to the Senate Appropriations Committee, the Civil Rights Department reports costs of $252,000 in 2024-25, and $250,000 annually thereafter for 2.0 Associate Governmental Program Analysts to handle intakes and investigations resulting from SB 700 (General Fund).

COMMENTS: Note: This measure is double referred to the Assembly Judiciary Committee upon passage out of this Committee.

The movement to legalize and regulate the non-medical use of cannabis is gaining momentum across the U.S. As of last year, 18 states and a number of territories have enacted laws to regulate cannabis for adult non- medical use.^[1] In the employment context, many states have moved to grant employees some level of protection for medical use. Some states, like Delaware, have created employee protections in their medical cannabis statutes^[2] while others have favored requiring employers to accommodate the medical use of cannabis under human rights statutes. New York, Arizona, Minnesota, and Illinois, have enacted laws that specifically require an employer to provide medical cannabis accommodations.^[3]

According to the author, “SB 700 strengthens existing law to protect employees and prospective applicants from employment discrimination based on legal cannabis use. Last year, the Legislature made it unlawful for an employer to discriminate against a person in hiring, termination, or conditions of employment because of the person’s off-the-job cannabis usage.

SB 700 explicitly makes it unlawful for employers to request information from an applicant relating to their prior use of cannabis. This bill preserves the provisions of AB 2188, including exemptions for employees subject to a federal background check or in the construction industry. It does nothing to change existing law pertaining to testing for cannabis and cannabis use on the job; ensuring employers can maintain a drug-free workplace.”

The author further states that the bill “promotes equity by ensuring that individuals are not discriminated against solely for their legal and recreational use of cannabis. The war on drugs and the state’s prohibition on cannabis use had significant consequences for underserved and marginalized communities in particular, by criminalizing individuals who used cannabis recreationally and limiting their employment opportunities. SB 700 helps protect these individuals from further employment discrimination and increase their opportunities for employment.”

Arguments in Support

California NORML is in support and states, “It has been brought to our attention that some employers have a policy of asking prospective employees about their prior use of cannabis. This practice is clearly inconsistent with the intent of AB 2188, since prior use of cannabis is irrelevant to a worker’s present use of cannabis on the job or in the workplace.

SB 700 addresses this problem by explicitly making it unlawful for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis.”

SB 700 preserves other provisions in AB 2118, such as exemptions for employers subject to federal regulation or in the construction industry.

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

Arguments in Opposition

None on file.

Prior Legislation

AB 2188 (Quirk) Chapter 392, Statutes of 2022, provides that, beginning January 1, 2024, that it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.

AB 2355 (Bonta) of 2020 makes it an unlawful employment practice for an employer or other entity to refuse to hire or employ a person, to refuse to select a person for a training program leading to employment, to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against an employee, because of the employee’s status as a qualified patient, or as a person with an identification card, for purposes of medical cannabis. The bill died in this committee.

AB 2069 (Bonta) of 2018 provides that the medical use of cannabis by a qualified patient or person with an identification card to treat a known physical or mental disability or medical condition is subject to reasonable accommodation by an employer. The measure died in the Assembly Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Americans for Safe Access
California Cannabis Industry Association
California Employment Lawyers Association
California Norml 
The Parent Company

Opposition

None on file.

Analysis Prepared by: Megan Lane / L. & E. /

1. National Conference of State Legislatures, "State Medical Cannabis Laws," accessed on April 9, 2022. ↑

2. DEL. CODE ANN. TIT. 16 Section 4905A. ↑

3. Gregory A. Hearing and Michael A. Balducci, "Medical Marijuana's Effect on Employment Law: The Highs, The Lows, and The Unanswered Questions," 91 Fla. Bar. J. 22, 2017. ↑

 THIRD READING  

Bill No: SB 700

Author: Bradford (D)

Amended: 4/13/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-2, 4/11/23

AYES: Umberg, Allen, Ashby, Laird, McGuire, Min, Wiener

NOES: Wilk, Niello

NO VOTE RECORDED: Durazo, Stern

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 3-0, 4/26/23

AYES: Cortese, Laird, Smallwood-Cuevas

NO VOTE RECORDED: Wilk, Durazo

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SUBJECT: Employment discrimination: cannabis use

SOURCE: Author

DIGEST:

This bill adds to the prohibitions under the Fair Housing and Employment Act (FEHA), set to take effect January 1, 2024, on employment discrimination on the basis of an employee’s or potential employee’s cannabis use, to prohibit an employer from requesting information about an applicant’s past cannabis use, subject to specified exceptions.

ANALYSIS:

Existing law:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., article I, § 1.)
2. Establishes the Compassionate Use Act (CUA) of 1996, also known as Proposition 215, which protects patients and their primary caregivers from criminal prosecution or sanction for obtaining and using marijuana for medical purposes upon the recommendation of a physician, with the goal of ensuring that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician, as specified. (Health & Saf. Code, § 11362.5.)
3. Authorizes, pursuant to Proposition 16 and subsequent Legislative measures, persons aged 21 and older to possess specified quantities of cannabis, products containing cannabis, and cannabis plants for personal use. (Health & Saf. Code, §§ 11362.1.)
4. Provides that 3) does not override laws prohibiting the operation of a vehicle while impaired by a controlled substance, laws prohibiting the use of cannabis while within a prison or other carceral facility, laws establishing that it would constitute professional malpractice or negligence to undertake any task while impaired, or laws allowing any state or local entity or private individual to prohibit or restrict the use of cannabis on their property. (Health & Saf. Code, § 11362.45.)
5. Makes it an unlawful employment practice, under the Fair Employment and Housing Act (FEHA), for an employer to refuse to hire, discharge from employment, or otherwise discriminate against a person in compensation or in the terms, conditions, or privileges of employment on account of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. (Gov. Code, § 12940(a).)
6. Makes, beginning January 1, 2024, it an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
   1. The person’s use of cannabis off the job and away from the workplace; this provision does not prevent an employer from engaging in an employment action based on a scientifically preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
   2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Gov. Code, § 12954(a), (f).)
7. Provides exceptions and clarifications to 6), as follows:
   1. Provides that 6) does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace as specified under existing law.
   2. Provides that 6) does not apply to an employee in the building and construction trades.
   3. Provides that 6) does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations.
   4. Provides that 6) does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract. (Gov. Code, § 12954(b)-(e).

This bill:

1. Adds, to the FEHA prohibition on discrimination on the basis of cannabis use, a provision making it unlawful for an employer to request information from an applicant relating to the applicant’s prior use of cannabis.
2. Provides that 1) does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law, and that 1) does not preempt state or federal laws requiring applicants to be tested for controlled substances or to applicants for positions requiring a federal background check or security clearance, as specified.

Comments

California has permitted medical cannabis use since 1996, when the voters approved Proposition 215.^[1] Adult recreational cannabis use was approved by the voters in 2016,^[2] and the Legislature subsequently enacted the Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to streamline and synthesize the licensing and regulatory regimes for medical and recreational cannabis.^[3] Until 2022, however, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and did not affect an applicant’s or employee’s job performance.

To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 (Quirk, Ch. 392, Stats. 2022), which made it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system. The bill exempted from its scope employers who require federal security clearances or whose cannabis usage may otherwise be at issue under federal law or hiring practices.

According to the author, despite AB 2188’s prohibition on discrimination on the basis of a person’s off-the-job workplace, certain employers have continued to ask about applicants’ past cannabis use. Given that AB 2188 expressly prohibits an employer from acting on information about an applicant’s cannabis use—a person’s use of cannabis in the past is, of course, one temporal component of their overall use of cannabis—it is unclear why employers continue to ask this question. Nevertheless, to avoid any possible confusion or inadvertent discrimination, this bill expressly prohibits an employer from requesting information from an applicant about the applicant’s prior use of cannabis. The bill exempts from its scope positions involving federal background checks or the ability to ask about criminal histories where not otherwise prohibited by law.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, the Civil Rights Department reports costs of $252,000 in 2024-25, and $250,000 annually thereafter for 2.0 Associate Governmental Program Analysts to handle intakes and investigations resulting from SB 700 (General Fund).

SUPPORT: (Verified 5/18/23)

California Employment Lawyers Association

California NORML

OPPOSITION: (Verified 5/18/23)

None received

ARGUMENTS IN SUPPORT: According to the California Employment Lawyers Association (CELA):

CELA supports SB 700 because it will help strengthen recently enacted protections for employees and prospective applicants from employment discrimination based on legal cannabis use. Discriminatory hiring practices are often the most difficult to prove because it is so hard to assess what the motivating factor was for the employer’s decision…

SB 700 would prohibit the employer from requesting information from an applicant relating to their prior use of cannabis. This will help ensure that the employer does not use information about an applicant’s legal cannabis use to discriminate against the applicant, shoring up the discrimination protections recently enacted pursuant to AB 2188 (Quirk, Ch. 392, Stats. 2022).

Prepared by: Allison Whitt Meredith / JUD. / (916) 651-4113

5/20/23 13:05:30

**** END ****

1. Compassionate Use Act (Prop. 215), as approved by voters, Gen. Elec. (Nov. 5, 1996). ↑

2. The Control, Regulate, and Tax Adult Use of Marijuana Act (Prop. 64), as approved by voters, Gen. Elec. (Nov. 8, 20216). ↑

3. SB 94 (Senate Committee on Budget and Fiscal Review, Ch. 27, Stats. 2017). ↑

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 700 (Bradford) - Employment discrimination: cannabis use

Bill Summary:

SB 700 would make it unlawful under the Fair Employment and Housing Act (FEHA) for an employer to request information about an applicant’s past cannabis use, subject to specified exceptions.

Fiscal Impact:

The Civil Rights Department reports costs of $252,000 in 2024-25, and $250,000 annually thereafter for 2.0 Associate Governmental Program Analysts to handle intakes and investigations resulting from SB 700 (General Fund).

Background:

Cannabis has been legal in this state for medical purposes since 1996 and for recreational purposes since 2016. Until last year, however, California law permitted, employers, under some circumstances, to refuse to hire someone, or to discipline or fire an employee, even when the cannabis use was not on the job site, did not jeopardize safety, and did not affect the employee’s job performance. To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 (Quirk, Ch. 392, Stats. 2022), which made it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system.

This bill adds an additional prohibition to those enacted in AB 2188, to make it unlawful for an employer to request information from an applicant for employment about the applicant’s prior use of cannabis. This prohibition is subject to AB 2188’s exemptions for jobs that are required, under state or federal law, to test for controlled substances as a condition of employment, as specified, and does not affect an employer’s rights and obligations to maintain a drug- and alcohol-free workplace.

Proposed Law:

• Prohibits an employer from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis.
• Specifies that this bill does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law.
• Provides for certain exceptions, as specified.

Related Legislation:

AB 2188 (Quirk, Ch. 392, Stats. 2022) made it unlawful, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment based on a drug screening test finding the presence of nonpsychoactive cannabis metabolites in their system or for the person's off-the-job use of cannabis.

AB 1256 (Quirk, 2021) would have prohibited employers from discriminating against an applicant or employee based on the result of a drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids. AB 1256 died in the Assembly Labor and Employment Committee.

AB 2355 (Bonta, 2020) would have prohibited employers from discriminating against applicants or employees for medicinal cannabis use that can be reasonably accommodated. AB 1256 died in the Assembly Labor and Employment Committee.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Dave Cortese, Chair

2023 - 2024 Regular

Bill No: SB 700 Hearing Date: April 26, 2023

SUBJECT: Employment discrimination: cannabis use

KEY ISSUE

Should the Legislature make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis?

ANALYSIS

Existing law:

1. Authorizes, pursuant to Proposition 64 and subsequent Legislative measures, persons aged 21 and older to possess specified quantities of cannabis, products containing cannabis, and cannabis plants for personal use. (Health and Safety Code §11362.1 et seq.)
   
2. Provides that Health & Safety Code §11362.1 does not override laws prohibiting the operation of a vehicle while impaired by a controlled substance, laws prohibiting the use of cannabis while incarcerated, laws establishing that it would constitute professional malpractice or negligence to undertake any task while impaired, or laws allowing any state or local entity or private individual to prohibit or restrict the use of cannabis on their property. (Health and Safety Code §11362.45)
   
3. Makes it an unlawful employment practice, under the Fair Employment and Housing Act (FEHA), for an employer to refuse to hire, discharge from employment, or otherwise discriminate against a person in compensation or in the terms, conditions, or privileges of employment on account of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. (Government Code §12940(a))
   
4. Defines employer under FEHA to mean any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities except a religious organization or a corporation not organized for private profit. (Government Code §12926)
   
5. Beginning January 1, 2024, makes it an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
   
   1. The person’s use of cannabis off the job and away from the workplace; this provision does not prevent an employer from engaging in an employment action based on a scientifically preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
      
   2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Government Code §12954)
      
6. Provides that Government Code §12954 does not:
   
   1. Apply to an employee in the building and construction trades.
      
   2. Permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace as specified under existing law.
      
   3. Apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations.
      
   4. Preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract. (Government Code §12954(b)-(e))

This bill:

1. Makes it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.
   
2. Provides that the preceding is subject to the existing limitations of the FEHA prohibition on discrimination on the basis of cannabis use.
   
3. Provides that this bill does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.

COMMENTS

1. Need for this bill?

In March 2021, the State Personnel Board (SPB) heard a case regarding the dismissal of a CalTrans maintenance worker for testing positive for THC upon his return to duty after a leave of absence. In upholding the Administrative Law Judge's decision to revoke his termination, the SPB ruled that a positive urinalysis test for marijuana, on its own, is not grounds for dismissal. In this case, there was no evidence that the worker was "under the influence of marijuana when he reported for duty or on standby for duty or that he possessed or used marijuana while on duty or on standby." The SPB found that the test had limited probative value because it could only show marijuana use at some point in time prior to the worker reporting to work. Furthermore, the fact that he was in a position designated as "safety sensitive" was not dispositive because such designation only attaches to a state worker when they are "on duty or on standby for duty." Thus, a positive drug test for off the job and past use of marijuana cannot be a basis for proving employee impairment.

Recreational use of cannabis has been legal in California since 2016 when a majority of voters approved Proposition 64. Up until January of this year, California employers could still lawfully refuse to hire someone because they use cannabis, and workers could still be disciplined or fired for cannabis use, even if that use took place off of the job, away from the worksite, and did not jeopardize safety or otherwise impair the worker’s performance.

According to the author, “Existing law makes it unlawful for employers to discriminate against workers in hiring or employment based on their “use of cannabis off the job and away from the workplace,” effective Jan 1, 2024. However, some employers, in particular law enforcement agencies, have a policy of asking prospective employees about their prior use of cannabis.

Law enforcement agencies throughout the state employ zero tolerance policies on cannabis use and continue to ask applicants whether they have used cannabis recreationally prior to employment. This practice not only dissuades otherwise suitable candidates from applying for these positions, but also leads to situations in which individuals either respond dishonestly to this question, or people are denied from moving further in the application process for using cannabis in a legal and responsible capacity in accordance with the laws of this state.

SB 700 explicitly makes it unlawful for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis.” SB 700 preserves other provisions in AB 2188, such as exemptions for employers subject to federal regulation or in the construction industry. It does nothing to change existing law pertaining to testing for cannabis and cannabis use on the job.”

2. Proponent Arguments

According to California Norml, “It has been brought to our attention that some employers have a policy of asking prospective employees about their prior use of cannabis. This practice is clearly inconsistent with the intent of AB 2188, since prior use of cannabis is irrelevant to a worker’s present use of cannabis on the job or in the workplace.

SB 700 addresses this problem by explicitly making it unlawful for employers to “request information from an applicant for employment relating to the applicant’s prior use of cannabis.” SB 700 preserves other provisions in AB 2118, such as exemptions for employers subject to federal regulation or in the construction industry. It is already illegal in California for employers to ask job applicants about their prior use of alcohol and other legal drugs. SB 700 rightly extends this to cannabis.”

3. Opponent Arguments:

None received

4. Double Referral

This bill was first referred to the Senate Committee on Judiciary and passed 7-2.

5. Prior Legislation:

AB 2188 (Quirk – Chapter 392, Statutes of 2022) provided, with certain exceptions, that it is unlawful for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment based on a drug screening test finding the presence of nonpsychoactive cannabis metabolites in their system or for the person's off the job use of cannabis.

AB 1256 (Quirk, 2021) would have prohibited employers from discriminating against an applicant or employee based on the result of a drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids. This bill died in the Assembly Committee on Labor and Employment.

AB 2355 (Bonta, 2020) would have prohibited employers from discriminating against applicants or employees for medicinal cannabis use that can be reasonably accommodated. This bill died in the Assembly Labor and Employment Committee.

AB 2069 (Bonta, 2018) was substantially similar to AB 2355. This bill died in the Assembly Committee on Appropriations.

AB 266 (Bonta - Chapter 689, Statutes of 2015) established a comprehensive licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, and sale of medical cannabis.

AB 2279 (Leno, 2008) would have prohibited employers from discriminating against qualified medical cannabis patients employed in non safety-sensitive positions. In his veto message, Governor Schwarzenegger wrote: “[…] I am concerned with interference in employment decisions as they relate to cannabis use. Employment protection was not a goal of the initiative as passed by voters in 1996.”

SB 420 (Vasconcellos - Chapter 875, Statutes of 2003) enacted the Medical Cannabis Program which provided for a voluntary medical cannabis patient card that could be used to verify that the patient or their caregiver had state authorization to cultivate, possess, transport, or use medicinal cannabis.

SUPPORT

California Norml

OPPOSITION

None received

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 700 (Author:Bradford)

Version: March 20, 2023

Hearing Date: April 11, 2023

Fiscal: Yes

Urgency: No

Consultant: AWM

SUBJECT

Employment discrimination: cannabis use

DIGEST

This bill adds to the prohibitions under the Fair Housing and Employment Act (FEHA), set to take effect January 1, 2024, on employment discrimination on the basis of an employee’s or potential employee’s cannabis use, to prohibit an employer from requesting information about an applicant’s past cannabis use, subject to specified exceptions.

EXECUTIVE SUMMARY

Cannabis has been legal in this state for medical purposes since 1996 and for recreational purposes since 2016. Until last year, however, California law permitted, employers, under some circumstances, to refuse to hire someone, or to discipline or fire an employee, even when the cannabis use was not on the job site, did not jeopardize safety, and did not affect the employee’s job performance. To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 (Quirk, Ch. 392, Stats. 2022), which made it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system.

This bill adds an additional prohibition to those enacted in AB 2188, to make it unlawful for an employer to request information from an applicant for employment about the applicant’s prior use of cannabis. This prohibition is subject to AB 2188’s exemptions for jobs that are required, under state or federal law, to test for controlled substances as a condition of employment, as specified, and does not affect an employer’s rights and obligations to maintain a drug- and alcohol-free workplace. The author has agreed to minor amendments to ensure the bill is consistent with federal law.

This bill is sponsored by the author and is supported by California NORML. There is no known opposition. If this Committee passes this bill, it will be next by heard by the Senate Labor, Public Employment, and Retirement Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides, pursuant to the California Constitution, that all people have inalienable rights, including the right to pursue and obtain privacy. (Cal. Const., article I, § 1.)
2. Establishes the Compassionate Use Act (CUA) of 1996, also known as Proposition 215, which protects patients and their primary caregivers from criminal prosecution or sanction for obtaining and using marijuana for medical purposes upon the recommendation of a physician, with the goal of ensuring that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician, as specified. (Health & Saf. Code, § 11362.5.)
3. Authorizes, pursuant to Proposition 16 and subsequent Legislative measures, persons aged 21 and older to possess specified quantities of cannabis, products containing cannabis, and cannabis plants for personal use. (Health & Saf. Code, §§ 11362.1.)
4. Provides that 3) does not override laws prohibiting the operation of a vehicle while impaired by a controlled substance, laws prohibiting the use of cannabis while within a prison or other carceral facility, laws establishing that it would constitute professional malpractice or negligence to undertake any task while impaired, or laws allowing any state or local entity or private individual to prohibit or restrict the use of cannabis on their property. (Health & Saf. Code, § 11362.45.)
5. Makes it an unlawful employment practice, under the Fair Employment and Housing Act (FEHA), for an employer to refuse to hire, discharge from employment, or otherwise discriminate against a person in compensation or in the terms, conditions, or privileges of employment on account of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. (Gov. Code, § 12940(a).)
6. Beginning January 1, 2024, makes it an unlawful employment practice under FEHA for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
   1. The person’s use of cannabis off the job and away from the workplace; this provision does not prevent an employer from engaging in an employment action based on a scientifically preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
   2. An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. (Gov. Code, § 12954(a), (f).)
7. Provides exceptions and clarifications to 6), as follows:
   1. Provides that 6) does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace as specified under existing law.
   2. Provides that 6) does not apply to an employee in the building and construction trades.
   3. Provides that 6) does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations.
   4. Provides that 6) does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract. (Gov. Code, § 12954(b)-(e).

This bill:

1. Adds, to the FEHA prohibition on discrimination on the basis of cannabis use, a provision making it unlawful for an employer to request information from an applicant relating to the applicant’s prior use of cannabis.
2. Provides that 1) is subject to the existing limitations on the FEHA prohibition on discrimination on the basis of cannabis use set forth in 7)(a) and 7)(d).

COMMENTS

1. Author’s comment

According to the author:

SB 700 strengthens existing law to protect employees and prospective applicants from employment discrimination based on legal cannabis use. Although recent changes to state law have prohibited employers from discriminating based on one’s cannabis use off the job, clarity is required to ensure that prospective applicants are not being dissuaded or rejected for using cannabis in a legal and responsible way.

2. This bill cleans up prior legislation that prohibits employment discrimination on the basis of off-the-job cannabis use

California has permitted medical cannabis use since 1996, when the voters approved Proposition 215.^[1] Adult recreational cannabis use was approved by the voters in 2016,^[2] and the Legislature subsequently enacted the Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to streamline and synthesize the licensing and regulatory regimes for medical and recreational cannabis.^[3] Until 2022, however, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and did not affect an applicant’s or employee’s job performance.

To prevent adverse employment outcomes from being taken against Californians who used cannabis as permitted by state law, the Legislature enacted AB 2188 (Quirk, Ch. 392, Stats. 2022), which made it unlawful under FEHA, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment because of (1) the person’s off-the-job cannabis usage, or (2) a drug-screening test that found nonpsychoactive cannabis metabolites in the person’s system. The bill exempted from its scope employers who require federal security clearances or whose cannabis usage may otherwise be at issue under federal law or hiring practices.

According to the author, despite AB 2188’s clear prohibition on discrimination on the basis of a person’s off-the-job workplace, certain employers have continued to ask about applicants’ past cannabis use. California NORML, writing in support, reports the same issue, and notes that “this practice is clearly inconsistent with the intent of AB 2188, since prior cannabis use is irrelevant to a worker’s present use of cannabis on the job or in the workplace.”

Given that AB 2188 expressly prohibits an employer from acting on information about an applicant’s cannabis use—a person’s use of cannabis in the past is, of course, one temporal component of their overall use of cannabis—it is unclear why employers continue to ask this question. Nevertheless, to avoid any possible confusion or inadvertent discrimination, this bill expressly prohibits an employer from requesting information from an applicant about the applicant’s prior use of cannabis.

To be clear, this bill does not prevent an employer from asking about criminal convictions, to the extent those might involve cannabis; the bill simply prohibits an employer from asking about the applicant’s past use. The author has agreed to amendments that will ensure that the bill does not interfere with federal background checks or the ability to ask about criminal histories where not otherwise prohibited by law. This measure, as amended, should thus further the original goal of AB 2188.

3. Amendments

The author has agreed to amend the bill to (1) clarify that the prohibition on asking for information about past cannabis use does not prohibit an employer from inquiring about an applicant’s criminal history where otherwise permitted by law, and (2) provide that the prohibition on asking for information about past cannabis use does not apply to applicants or employees hired for positions that require specified government background checks or security clearances, as specified, to avoid conflicting with federal law. The amendments are as follows, subject to any nonsubstantive changes the Office of Legislative Council may make:

Amendment 1

On page 2, strike out lines 26 to 31, inclusive.

Amendment 2

On page 2, in line 32, after “(b)” insert “(1)”

Amendment 3

On page 2, between lines 34 and 35, insert:

(2) This subdivision does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law.

Amendment 4

On page 3, between lines 7 and 8, insert:

(e) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.

Amendment 5

On page 3, in line 9, strike out “(e)” and insert “(f)”

SUPPORT

California NORML

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 2188 (Quirk, Ch. 392, Stats. 2022) made it unlawful, with certain exceptions, for an employer to discriminate against a person in hiring, termination, or terms and conditions of employment based on a drug screening test finding the presence of nonpsychoactive cannabis metabolites in their system or for the person's off-the-job use of cannabis.

AB 1256 (Quirk, 2021) would have prohibited employers from discriminating against an applicant or employee based on the result of a drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids. AB 1256 died in the Assembly Labor and Employment Committee.

AB 2355 (Bonta, 2020) would have prohibited employers from discriminating against applicants or employees for medicinal cannabis use that can be reasonably accommodated. AB 1256 died in the Assembly Labor and Employment Committee.

AB 2069 (Bonta, 2018) was substantially similar to AB 2355. AB 2069 died in the Assembly Appropriations Committee.

AB 266 (Bonta, Ch. 689, Stats. 2015) established a comprehensive licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, and sale of medical cannabis.

AB 2279 (Leno, 2008) would have prohibited employers from discriminating against qualified medical cannabis patients employed in non-safety-sensitive positions. In his message vetoing AB 2279, Governor Schwarzenegger wrote: “[…] I am concerned with interference in employment decisions as they relate to cannabis use. Employment protection was not a goal of the initiative as passed by voters in 1996.”

SB 420 (Vasconcellos, Ch. 875, Stats. 2003) enacted the state’s Medical Cannabis Program which provided for a voluntary medical cannabis patient card, which could be used to verify that the patient or their caregiver had state authorization to cultivate, possess, transport, or use medicinal cannabis.

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1. Compassionate Use Act (Prop. 215), as approved by voters, Gen. Elec. (Nov. 5, 1996). ↑

2. The Control, Regulate, and Tax Adult Use of Marijuana Act (Prop. 64), as approved by voters, Gen. Elec. (Nov. 8, 20216). ↑

3. SB 94 (Senate Committee on Budget and Fiscal Review, Ch. 27, Stats. 2017). ↑