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Employers Face New Laws Protecting Employee Cannabis Use and Reproductive Health Decisions

California has enacted new workplace discrimination laws that employers need to know in order to for their employment policies to remain compliant with state laws. Employers would be well-advised to consult with an employment attorney to ensure that those policies meet the new legal requirements and whether new policies need to be added.

Gov. Newsom signed legislation in October 2022 that amends the California Fair Employment and Housing Act (FEHA). For employers, off-duty cannabis use by employees and their reproductive health decisions receive anti-bias protection starting on January 1, 2023, for reproductive health decisions, and January 1, 2024, for cannabis use outside the workplace.

Reproductive Health Decisions

The Contraceptive Equity Act of 2022 goes into effect January 1, 2023, adding “reproductive health decision making” as a protected classification just as gender, sexual orientation, race and religion are protected.

Under this new law, employers cannot discriminate against employees or applicants over their decisions to use or access a specific drug, medical service, product or device for reproductive health.

In other words, employees can’t be terminated or have their employment adversely affected, and applicants can’t be denied employment, because of their use of contraceptives or abortion procedures.

Employers are also prohibited from requiring an employee or applicant to disclose information relating to their reproductive health decision making.

And, while this doesn’t affect employers, the law also amends the California Government Code to require that most health benefit plans or contracts offer coverage of contraceptives and related services.

Off-duty Cannabis Use

AB 2188 makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.”

Employers who require employee drug tests may not discriminate against an employee if non-psychoactive cannabis metabolites are found in the employee’s hair, blood, urine, or other bodily fluids.

There are exceptions and additional guidelines:

    • Employees and applicants are not protected for off-duty cannabis use if:
        • They work or seek employment in the building and construction trades
        • Their positions require a federal background investigation or security clearance, as regulated by the U.S. Department of Defense.
        • Existing state or federal laws require applicants or employees be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
    • Employers can still screen job applicants for drugs, as long as the drug test does not screen for non-psychoactive cannabis metabolites.
    • Employers are not prohibited from taking adverse action against an employee for cannabis use based on scientifically valid pre-employment drug screenings that do notscreen for non-psychoactive cannabis metabolites.
    • Employees are not provided legal protection for possessing, being impaired by or using cannabis while on the job.
    • Employers retain their rights and obligations to maintain a drug- and alcohol-free workplace.

Navigating the continual changes to state, and federal, laws governing employers and employee rights is complicated. Employer noncompliance can open the door to costly litigation and lawsuits.

LawPLA’s team of employer’s defense attorneys provides expert legal advice and defense for all employment issues.
Contact us today to schedule a consultation to see how we can best protect your rights as an employer.


PLEASE NOTE: This is not a representation, warranty, or guarantee of a future result or outcome. Every case is different just like every one of our clients.

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