Last month, the California Legislature voted to join what it refers to as “the movement to legalize and regulate the non-medical use of cannabis” across the United States, including offering employment protection for such use. California’s AB 2188, signed into law by Governor Newsom on September 18, 2022, amends the California Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate against an applicant or employee who has engaged in the lawful use of marijuana outside of work. The law takes effect on January 1, 2024.
The use of marijuana for medical purposes has been legal in California since 1996 pursuant to Proposition 215 (Compassionate Use Act), and recreational marijuana has been legal since 2016 pursuant to Proposition 64. However, neither of those propositions addressed employment or created employment protections for marijuana users. Further, the California Supreme Court ruled in 2008 that the FEHA did not require employers to accommodate the use of medical marijuana, in part because marijuana was, and remains, a controlled substance prohibited by federal law. When the new law takes effect in 2024, with limited exceptions, California employers will have to accommodate workers who engage in the off-duty use of marijuana, regardless of whether the use is for medical purposes.
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