Two significant cannabis-related legislative changes are set to take effect in California on January 1, 2024.

AB 2188^[i] established Cal. Govt. Code section 12954 prohibiting employers from penalizing applicants/employees for off-duty cannabis use that does not impair the individual’s work performance. SB 700^[ii] expands protections provided under AB 2188 and prevents employers from requesting applicants provide information about prior cannabis use.^[iii]

To prepare for these changes employers should consider taking the following steps:

1. Update any recruiting materials that discuss the company’s anti-drug policies and/or testing requirements to ensure no company materials request applicants provide information about prior cannabis use.
2. Make sure all third-party testing facilities are aware of – and can comply with – new testing protocols and the prohibitions on drug screen tests detecting nonpsychoactive cannabis metabolites (NCM) in the blood, hair, urine or other bodily fluids.
3. Review existing handbook policies and training materials to update existing drug testing information for applicants and current employees to ensure clear messaging relating to drug screening in connection with hiring, discipline and termination.

[i] Signed into law September 18, 2022.

[ii] Signed into law October 7, 2023.

[iii] Nonetheless, information about a person’s prior cannabis use obtained from the individual’s criminal history is exempt from this prohibition if the employer is otherwise permitted to consider or inquire about such information after a conditional offer of employment has been made.