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As of January 1, 2024 employers may not ask about or take adverse actions based on an individual’s off-duty marijuana use.

On September 19, 2023, California enacted Senate Bill (SB) 700, which adds protections against marijuana-related questions for job applicants. Almost a year prior, Assembly Bill (AB) 2188 was enacted providing employment protections for job applicants and employees who use marijuana outside of work. Both of these new laws went into effect on January 1, 2024.

Prohibited Actions

Under these new laws, employers may not:
  • Ask an applicant about prior use of marijuana
  • Discriminate against or penalize an employee or applicant based on the individual’s:
    • Use of marijuana off the job and away from the workplace
    • Positive tests for marijuana that do not measure impairment

Exemptions

The new laws do not apply to:

  • Individuals applying for, or working in, positions that are subject to certain state or federal laws that require drug testing
  • Individuals who possess, use, or are impaired by marijuana at work

Employer Impact

AB 2188 and SB 700 both amend the Fair Housing and Employment Act, and replaces a 2008 California Supreme Court decision that allows discrimination based on marijuana use. Employers with workplace policies that address marijuana use should review these new laws and revise their policies to ensure compliance.