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Why California employers should not ask about marijuana use

Marijuana use is legal in California for adults over the age of 21. On January 1, 2024, Assembly Bill 2188 (AB 2188) will go into effect, prohibiting employers from asking job applicants about their prior marijuana use. The law also prohibits employers from discriminating against employees for using marijuana off the job and away from the workplace.

There are a few reasons why California employers should not ask about marijuana use:

  • It is discriminatory. Marijuana use is a legal activity for adults in California. Asking about marijuana use is similar to asking about other personal characteristics, such as race, religion, or sexual orientation, which are protected from discrimination under the law.
  • It is not a good indicator of job performance. Marijuana use does not necessarily mean that someone is not qualified for a job or that they will be a poor performer. In fact, studies have shown that marijuana use does not have a significant impact on cognitive function or job performance.
  • It creates a hostile work environment. Asking about marijuana use can make employees feel uncomfortable and unwelcome. It can also create a sense of fear and distrust.
  • It is bad for business. In today’s competitive job market, employers need to attract and retain the best talent. Asking about marijuana use can deter qualified candidates from applying for jobs at your company.

If you are an employer in California, it is important to review your hiring and drug testing policies to ensure that they comply with the law. You should also train your managers and supervisors on the new law so that they are aware of their rights and responsibilities.

Here are some tips for California employers on how to handle marijuana use in the workplace:

  • Update your hiring and drug testing policies. Your hiring and drug testing policies should be in compliance with the California Fair Employment and Housing Act (FEHA) and Assembly Bill 2188 (AB 2188). These laws prohibit employers from discriminating against employees and job applicants on the basis of marijuana use.
  • Train your managers and supervisors. Make sure that your managers and supervisors are aware of the new law and their rights and responsibilities. They should also be trained on how to identify and address workplace impairment.
  • Focus on impairment, not use. The goal of your workplace policies should be to prevent impairment, not to punish employees for using marijuana outside of work. If you are concerned about an employee’s impairment, you should address it directly with the employee.

There are a few exceptions to the law. Employers are still allowed to discriminate against employees for marijuana use if the position is safety-sensitive, such as a pilot or train conductor. Employers are also allowed to discriminate against employees for marijuana use if they are required to do so by federal law or contract.

By following these tips, employers can comply with AB 2188 and create a fair and inclusive workplace for all employees.

References

  • California Fair Employment and Housing Act (FEHA): The FEHA prohibits employers from discriminating against employees and job applicants on the basis of certain protected characteristics, including marijuana use.
  • Assembly Bill 2188 (AB 2188): AB 2188 prohibits employers from asking job applicants about their prior marijuana use. The law also prohibits employers from discriminating against employees for using marijuana off the job and away from the workplace.