New California laws will protect workers who use marijuana off-the-job

Most California employees who use marijuana away from work will see new protections on January 1.

"It’s a very, very significant law in terms of what it says, and perhaps what it sets the pathway for in other places," said Tae Phillips, a lawyer with Ogletree Deakins and a subject matter expert on workplace marijuana and drug testing issues.

Gov. Gavin Newsom signed two bills into law related to cannabis use. One prevents employers from asking job applicants about their past marijuana use. Another law prohibits employers from discriminating against employees for cannabis use, off the job and away from work.


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"It’s a first of its kind law," said Phillips. "It’s the first time that there has been a method of testing prohibition on employers when it comes to marijuana."

The new protections prevent employers from punishing or firing an employee for having ‘non-psychoactive’ traces of marijuana or THC in their system. Put simply, you can still be drug tested at work, but action can only be taken if the results show impairment from cannabis.

"The shortcoming, I think with this law and really all marijuana laws thinking about policing the workplace is that yes-no drug test, positive-negative, does not indicate or prove the person was impaired," explained Phillips.

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The bill does now allow employees to possess or use cannabis on the clock or at the workplace. There are also exceptions to the new laws, building and construction trades are not included, as well as some federal jobs.

Phillips put the changes in simple terms for employers.

"Start with this fundamental question of ‘do we care about marijuana?’ said Phillips. "We don’t want people to be impaired but, do we care of people are smoking pot outside of work."

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He said no matter what the answer is to the question, there are ways to ensure employers follow the new regulations.

Phillips also said this change to California law, could stir more change moving forward.

"Oftentimes we see a left to right march when it comes to particularly employment related laws," said Phillips. "We all kind of start with California, and slowly spread particularly with your more liberal states."