New Bill May Make Discrimination for Marijuana Use Illegal in CA
Recreational cannabis became legal in 2016 in California, and many people use marijuana products in a responsible manner. Five years later, however, employers can still choose not to hire someone or terminate an employee if a drug test comes back positive for tetrahydrocannabinol (THC). If you are a company that uses such drug test results for hiring or employment decisions, you might need to change your policies in the coming months due to Assembly Bill 1256.
The California legislature is considering a bill that would prohibit employment decisions based on the results of drug tests that test positive for THC. If the bill passes, employers would essentially not be able to discriminate against employees for marijuana use, just as they cannot discriminate against employees based on protected factors or other lawful off-work activities. This would be a major change in the hiring or employment process for many companies.
Cannabis Screenings and Employment Decisions
Cannabis screenings have been a controversial basis for employment decisions since recreational marijuana became legal in California. Urine or hair tests can show THC in someone’s system from use hours or days prior. For example, if someone used cannabis on Saturday night at home, and then took a drug test for their employer on Monday, the test could come back positive for THC. This employee might lose their job even though they never used marijuana while working, and their use never interfered with their job.
AB 1256 aims to address employment discrimination against people who have positive THC results for drug tests. This means that companies will not be able to use such drug test results for:
- Hiring decisions
- Disciplinary action
- Other adverse employment actions
If an employer does use a positive THC test for such employment decisions, the affected applicant or employee would have the right to take legal action. The employee could seek damages for lost wages or opportunities, an injunction for reinstatement to their previous position, as well as attorney’s fees and court costs. This is similar to an employee’s rights when they allege other types of prohibited employment discrimination.
What Employers Should Know
If AB 1256 passes, employers of all types and sizes will need to be prepared to change their hiring and employment procedures to ensure they are not unlawfully considering positive THC results in employment decisions. It is not clear whether the legislation only affects urine and hair testing or blood tests, as well.
Employers should also know that not all cannabis testing will be prohibited. Companies can still conduct cannabis screening in the following situations:
- When federal law or regulations requires it, such as for commercial drivers
- Screening is required for licensure or monetary benefits of the company
- The job in question is in the construction or building industry
Consult with Our Encino Employment Law Attorneys
Once again, California employment laws are changing, and it is essential for companies to change their policies to adhere to the law. Consult with an Encino employment lawyer from Kaufman McAndrew LLP if you have questions or concerns about any employment matters. Call 818-788-5767 or contact us online today.