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Marijuana TESTING PROHIBITION - 12954 CGC
Section 12954 makes it unlawful for California employers to discriminate against employees or applicants for legally using cannabis off the job and away from the workplace, with specific exceptions.
Overview
California Government Code Section 12954, effective January 1, 2024, protects employees and job applicants from discrimination based on their off-duty, off-site cannabis use. Under this law, it is unlawful for an employer to discriminate in hiring, termination, or any term or condition of employment if the action is based on a person’s legal cannabis use.
Key Provisions
- Employment Protections: Employers cannot penalize or make employment decisions based on an individual’s lawful cannabis use outside of work.
- Drug Testing: Employers may still conduct pre-employment drug screenings, but tests that detect nonpsychoactive cannabis metabolites cannot be used to discriminate. Employers may act on a scientifically valid test that does not detect nonpsychoactive "metabolites".
- Information Requests: Employers are prohibited from asking applicants about their prior cannabis use. If cannabis use is discovered through criminal history, discrimination is still generally prohibited unless allowed under other state or federal laws.
- Workplace Use: The law does not allow cannabis use on the job, nor does it prevent employers from maintaining a drug- and alcohol-free workplace.
- Exceptions: Section 12954 does not apply to:
- Employees in the building and construction trades.
- Positions requiring federal background checks or security clearances.
- Situations where federal or state law mandates controlled substance testing, including for federal contracts or funding.
Legislative Background
Section 12954 was enacted through Assembly Bill 2188 (AB 2188) and amended by Senate Bill 700 (SB 700). It represents a significant expansion of employment protections under the California Fair Employment and Housing Act (FEHA), specifically addressing cannabis use in the workplace context.
Practical Implications
- Employers must update policies to ensure compliance, particularly regarding hiring practices, drug testing, and inquiries about cannabis use.
- Employees and applicants are protected from discrimination for lawful off-duty cannabis use, but must still comply with workplace rules regarding impairment and on-site use.
- Legal counsel is recommended for employers to navigate exceptions and federal compliance requirements.
Section 12954 thus balances employee rights to legal cannabis use with employer rights to maintain safe and drug-free workplaces, while clarifying the limits of permissible employment inquiries and actions. BE SAFE....ALWAYS TEST FOR THC VIA SALIVA BASED TESTING!
MARIJUANA LEGALIZATION
LEGAL CONSIDERATIONS
NATIONAL CONSIDERATIONS
NATIONAL CONSIDERATIONS
As of 2024, California's T.H.C. non-discrimination law prohibits employers from firing or denying employment to any individual based solely on a marijuana test that screens for the drug's metabolites (Hair, Urine, Blood). However, the construction industry and Department of Transportation (DOT) are exempt from this rule. Employers can sti
As of 2024, California's T.H.C. non-discrimination law prohibits employers from firing or denying employment to any individual based solely on a marijuana test that screens for the drug's metabolites (Hair, Urine, Blood). However, the construction industry and Department of Transportation (DOT) are exempt from this rule. Employers can still conduct drug testing for the parent drug of marijuana using oral fluid or saliva-based testing. Additionally, employers may continue to test for marijuana metabolites, keeping in mind fitness for duty clearance and legal considerations regarding drug detection times.
NATIONAL CONSIDERATIONS
NATIONAL CONSIDERATIONS
NATIONAL CONSIDERATIONS
THC remains illegal under federal law, and the D.O.T. is still required to test for THC. It’s important to check your state's regulations regarding all non-DOT testing events. While marijuana use and possession violate the Federal Controlled Substances Act, federal authorities have been defunded, leading to decreased prosecution of minor
THC remains illegal under federal law, and the D.O.T. is still required to test for THC. It’s important to check your state's regulations regarding all non-DOT testing events. While marijuana use and possession violate the Federal Controlled Substances Act, federal authorities have been defunded, leading to decreased prosecution of minor infractions. As a result, each state is free to establish its own legal considerations for marijuana. Before proceeding with any testing, particularly regarding drug detection times, make sure to review your state's marijuana laws. Also, keep in mind the T.H.C. non-discrimination law in your area.
LEGAL CONSIDERATIONS
NATIONAL CONSIDERATIONS
LEGAL CONSIDERATIONS
Under Arizona's T.H.C. non-discrimination law, employers cannot fire or withhold employment from individuals based solely on a positive marijuana test if they possess a State Issued Medical Marijuana Card. However, employers are permitted to test for marijuana metabolites, subject to fitness for duty clearance and legal considerations regarding drug detection times.