SB 700: California Law Prohibits Employment Discrimination Related to Employee History of Cannabis Use

On October 7, 2023, Governor Newsom signed into law Senate Bill 700 (“SB 700”) that adds new prohibitions to the Fair Housing and Employment Act (“FEHA”) related to employment discrimination based on past cannabis use by an employee or applicant.

Beginning January 1, 2024, it is unlawful for an employer to discriminate against an employee or applicant based on the person’s previous use of cannabis off the job and away from the workplace. Specifically, SB 700 prohibits employers from taking adverse employment action related to hiring, termination, or any other term or condition of employment, or otherwise penalizing the person because of their prior cannabis use. Additionally, an employer may not use a person’s criminal history related to prior cannabis use unless permitted under state or federal law. However, an employer may still conduct employer-required screening tests in accordance with state law.  (Recall that, under AB 2188, another recent California law that also takes effect on January 1, 2024, employers are precluded from taking adverse employment action based on a drug test that identifies non-psychoactive cannabis metabolites.)  Moreover, SB 700 also allows employers to continue to exercise their authority to require a drug-and-alcohol-free workplace.

Note that SB 700 creates three distinct exceptions that encompass employees in, and applicants for, positions that require federal government background investigation and/or security clearance, employees and applicants in the building and construction trades, and employees or applicants for roles that require regular drug testing as a condition of employment for federal funding or federal licensing and contracting.

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For further information, please contact Joan Pugh Newman or Joshua Imeri-Garcia of Aleshire & Wynder, LLP. Their information is below.