Law protecting California employees who use marijuana takes effect in 2024

Starting January 1, 2024, it will be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, based on their use of marijuana off the job and away from the workplace.

The new protections stem from an amendment to California's Fair Employment and Housing Act (FEHA) that was approved by Governor Gavin Newsom in 2022.

AB 2188 is the first law in California to provide a safeguard to people who use marijuana either recreationally or medicinally, both of which are legal in the state.

Under the new law, employers will be prohibited from holding drug screen results against an applicant if the test reveals evidence of past marijuana use. Employment-related drug testing will be intended to test for impairment on the job and/or at the worksite, not for past use.

Employers will also no longer be able to ask potential employees if they have used cannabis or marijuana.

Under AB 2188, it would still be lawful for employers to restrict marijuana use on the job. Additionally, anyone who works or is applying to work "in the building and construction trades," or for a federal job that requires security clearance in accordance with regulations issued by the U.S. Department of Defense, can still face disciplinary action or be denied employment for using marijuana outside of work since it is still illegal at the federal level.