California Employers Should Not Ask About Marijuana Use

​California Gov. Gavin Newsom recently signed a new law to prohibit employers from asking job applicants or employees about their prior marijuana use.

California "employers need to make sure that they do not seek any information about marijuana use from applicants, so there should be no questions about it on employment applications or during an interview," said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y. "There should be no consideration of criminal convictions for marijuana use or possession."

In light of the new law, "employers should re-evaluate whether pre-employment [drug] testing is worthwhile," said Alden Parker, an attorney with Fisher Phillips in Sacramento, Calif.

The state law allows employers to conduct pre-employment drug screening with methods that do not screen for nonpsychoactive cannabis metabolites in a person's hair, blood or urine.

The new law will take effect Jan. 1, 2024. It does not apply to employees in the construction industry or employees hired for positions that require a federal government background investigation or security clearance.

Impairment Not Permitted

Under a different California law that will take effect on April 1, 2024, employers cannot fire, discipline or demote a worker for using cannabis off the job and away from the workplace. However, employers can require employees to not possess, use or be impaired by marijuana at the worksite during work hours.

In order to discipline an employee for marijuana use, the law "requires that … you have to show that they were impaired while at work," Parker said. "The difficulty in doing that is pretty significant. How can you tell if it was during work hours that they were impaired?"

California employers should focus on performance and attendance issues for potential discipline, including slurred speech, incoherent speech, swaying, stumbling or sleeping at work, Russo said. "These are unacceptable behaviors that can lead to disciplinary action," she noted.

Before requiring a reasonable suspicion drug test, employers should document that a witness, such as a manager, attested that the employee appeared impaired by marijuana while at work on that particular day, Parker said.

"There really are no drug tests that can detect current marijuana impairment, so employers should rely on their observations of an employee's behaviors for potential disciplinary action," Russo said.

Bodily signs of marijuana impairment include red eyes, poor muscle coordination, delayed reaction times and increased appetite. A sudden shift in mood from tense to relaxed may indicate marijuana use, as could abrupt symptoms of anxiety, panic and hallucinations, according to the American Addiction Centers, based in Brentwood, Tenn.

Many employers have stopped pre-employment drug testing. "What they really care about is on-duty use and on-duty impairment," said Wendy Lane, an attorney with with Greenberg Glusker in Los Angeles.

A growing number of states have legalized recreational marijuana use in recent years, with Minnesota being the latest one. California legalized recreational marijuana in 2016 for adults ages 21 and older. Possession, selling and use of marijuana on federal property remains illegal under federal law. The state laws on marijuana generally supersede the federal law, unless the conduct occurs on federal property.

On Aug. 29, the U.S. Department of Health and Human Services recommended rescheduling marijuana from a Schedule I controlled substance to a Schedule III controlled substance, which could eventually open the door for marijuana to be a Food and Drug Administration-approved drug, legally available under federal law only with a valid prescription, reports JD Supra.

State laws' tension with federal law has persisted for years. "Across all industries, employers of individuals who use marijuana are also grappling with the juxtaposition of state and federal law," notes the National Association of Attorneys General. It recommends that until the law surrounding legalized marijuana is well settled, employers "be well versed in your state's developing law."