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California employers ought to take steps now to make sure their insurance policies and practices are aligned with the brand new employment protections for hashish use. Particularly, employers within the state at the moment are prohibited from discriminating towards employees who take a look at constructive for hashish in sure varieties of drug screens and from asking job candidates or present staff about their hashish use off-duty. What do it’s good to know to adjust to the brand new guidelines? Right here's a breakdown of the necessities and a three-step compliance information.

What’s California Discrimination Regulation?

Beneath California's Truthful Employment and Housing Act (FEHA), it’s unlawful for an employer to discriminate towards job candidates and staff based mostly on a protected class. In different phrases, employers are prohibited from taking an opposed employment motion, reminiscent of refusing to rent, demoting or terminating the worker, based mostly on a protected attribute, reminiscent of intercourse, race, faith, medical situation or incapacity.

Till 2022, FEHA didn’t present protections for hashish customers, however that modified when AB 2188 and SB 700 went into impact on January 1.

What has modified?

The California legislature just lately enacted two new legal guidelines that amend FEHA and shield hashish customers from employment discrimination beneath sure circumstances. Key provisions embrace the next:

  • Safety for off-duty use: AB 2188 prohibits discrimination based mostly on using hashish exterior the office. Extra particularly, the invoice created a brand new class protected beneath FEHA for people who have interaction within the off-site use of medical marijuana.
  • Limits to drug testing: AB 2188 additionally prohibits employers from utilizing the outcomes of hair or urine assessments for marijuana — which might detect traces of hashish for days or even weeks — in choices to rent, hearth or penalize employees. Beneath the brand new necessities, employers might want to undertake testing procedures that search for lively impairment/THC and discontinue testing for non-psychoactive hashish metabolites that don’t point out impairment. AB 2188 doesn’t stop employers from utilizing different assessments to detect impairment, reminiscent of saliva or blood assessments.
  • Drug-free workplaces allowed: Importantly, AB 2188 doesn’t have an effect on employers' rights to take care of a drug-free office. Workers or job candidates who’re beneath the affect, actively impaired or convey hashish to work may additionally be denied employment alternatives, disciplined or terminated on this foundation.
  • Exceptions could apply: There are exceptions to AB 2188's employment protections for employees within the constructing and building business and for job candidates and staff in positions that require a federal background investigation or a safety clearance.
  • Background screening limits: SB 700 clarifies AB 2188 by amending FEHA to stop employers from asking job candidates about their previous use of hashish. Moreover, employers could not discriminate towards an applicant after they discover details about previous hashish use associated to an applicant's felony historical past, until in any other case permitted by regulation.

What do you have to do?

Right here's a three-step information for employers.

  • Replace insurance policies: Overview your present insurance policies on drug and alcohol use to make sure compliance with AB 2188. Anti-discrimination insurance policies and drug use insurance policies should adjust to the brand new protections concerning using hashish first. Insurance policies ought to distinguish between off-the-job hashish use versus on-the-job incapacity, and you need to take into account specifying which testing procedures shall be used.
  • Overview and take a look at procedures: Make any essential modifications to make sure that take a look at procedures are compliant. If you happen to depend on drug screens to determine hashish use, you need to evaluate the way you conduct screenings and use assessments that differentiate between an worker who’s at present beneath the affect of hashish versus one who beforehand used hashish.
  • Try the brand new hiring paperwork: Overview your functions and new rent paperwork to make sure that nothing in these supplies requires impermissible details about a job applicant's earlier use of hashish.

Nazanin Afshar, Ariella Kupetz and Todd B. Scherwin are attorneys with Fisher Phillips in Los Angeles. © 2024 Fisher Phillips. All rights reserved. Reprinted with permission.

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