New year will bring ‘Don’t ask, don’t tell’ policy for California cannabis use and hiring
Come Jan. 1, 2024, California employers are barred from asking job applicants about cannabis use — a practice some employers used to filter out applicants according to North Bay cannabis advocates and recruitment specialists.
California Senate Bill 700, signed into law by Gov. Gavin Newsom in October, serves as part of the provisions of the California Fair Employment and Housing Act. It empowers the state Civil Rights Department to investigate and prosecute complaints alleging unlawful practices because of an applicant’s use of cannabis off the job and away from the workplace.
The new law would make it unlawful for a prospective employer to request information from an applicant relating to the prior use of cannabis.
Longtime cannabis advocates, in particular those who endorse its use for medicinal purposes, support the new law, claiming the discrimination exists.
“We’re making progress,” said Lynnette Shaw, founder of Marin Alliance CBC in Fairfax, the first medicinal cannabis dispensary in the state.
Nonetheless, Shaw showed a crack in the door that still exists for employers who want to find out whether job applicants use.
SB 700 does not preempt state or federal laws requiring an applicant to be tested for controlled substances. Also, an employer may ask about an applicant’s criminal history, given the inquiry complies with state law requirements.
In 2022, the California legislature passed Assembly Bill 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination or other types of employment conditions based on the person’s cannabis use.
“I never had a job test me for cannabis. I’m just generally not applying (then),” said Shaw, who added she knows people who have been asked about their cannabis usage during the job application process.
Although legal in California, cannabis has not been legalized by the federal government.
One of the questions surrounding the practice was whether asking about recreational or medical use of the drug violated privacy rights under the federal Health Insurance Portability and Accountability Act of 1996.
Dr. Larry Bedard, a Marin County medicinal cannabis supporter and MarinHealth board member, said he’s “not surprised” by the need for the law, and that the hiring practice goes on.
“Certain companies ask about that. Cannabis is still fairly controversial. I think applicants could make a good case it violates HIPAA rights,” Bedard said, referring to the Health Insurance Portability and Accountability Act that establishes national standards to protect individuals’ medical records and other identifying information.
“We would not recommend (companies) ask these questions,” said Human Resources Manager Trish Griffus of The Personnel Perspective, an employment recruitment firm in Santa Rosa.
Griffus mentioned the practice of inquiring about pot use is more evident when an applicant applies for roles in which operating machinery, such as driving a forklift for example, is part of the job. But some hiring managers may have passed on qualified workers who use.
“There are a lot of factors to consider with employment, with all kinds of conversations about medical versus recreation use,” she said. “In a million years, I wouldn’t ask that question anyway.”
In other cannabis bills, the governor vetoed legislation that would have legalized cannabis cafes, public establishments where cannabis products could be freely consumed or even sold.
Susan Wood covers law, cannabis, production, tech, energy, transportation, agriculture as well as banking and finance. She can be reached at 530-545-8662 or susan.wood@busjrnl.com
