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Excessive Protections on Info Referring to Staff’ Hashish Use


On October 7, 2023, Governor Gavin Newsom signed SB 700 into legislation, amending the California Truthful Employment and Housing Act (FEHA). SB 700, efficient January 1, 2024, expressly prohibits employers from requesting data from job candidates referring to their prior hashish use.

This newest modification to the FEHA follows prior adjustments to the legislation that have been enacted final 12 months. As we famous in our preliminary publish, on September 18, 2022, California enacted Meeting Invoice 2188 (AB 2188), which established Part 12954, prohibiting employers from penalizing workers or candidates for off-duty hashish use if such use doesn’t impair them on the office. AB 2188 additionally takes impact January 1, 2024.

In AB 2188, the Legislature declared that tetrahydrocannabinol (THC), the psychoactive chemical compound present in hashish, could be saved within the physique for so long as a month as a non-psychoactive hashish metabolite after it’s metabolized. The metabolites don’t point out that the person is presently underneath the affect of hashish, however solely that they consumed hashish in the previous couple of weeks. As a result of the Legislature noticed that the intent of drug assessments is to establish workers who could also be impaired, the Legislature declared that assessments that detect the quantity of non-psychoactive metabolites within the blood don’t accomplish that purpose as they don’t correlate to impairment on the job. As well as, the Legislature famous that various drug testing gadgets that don’t depend on the presence of non-psychoactive hashish metabolites, however which may establish the presence of THC in a person’s bodily fluids, are extra available and higher indicators of impairment. 

SB 700 expands the protections led to in AB 2188 to stop employers from requesting that candidates present details about their prior use of hashish. Nevertheless, it is very important be aware that SB 700 doesn’t prohibit employers from inquiring about an applicant’s legal historical past if in any other case permitted by legislation. Subsequently, details about a person’s prior hashish use obtained from a legally obtained legal historical past report, and if such data is in any other case lawful for an employer to think about in making employment selections, could be exempt from the brand new Part 12954.

On account of the enactment of SB 700, California employers ought to take into account reviewing their job software course of and any pre-employment drug screening protocols, in addition to their insurance policies and practices referring to drug screening in reference to hiring, self-discipline, and termination to make sure they’ll adjust to the brand new legislation.

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