Existing law, the California Fair Employment and Housing Act (“FEHA”), protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religion, gender, physical or mental disability amongst other protected statuses.
On September 18, 2022, Governor Gavin Newsom signed Assembly Bill 2188 into law which added section 12954 to the California Government Code and existing FEHA sections. Relatedly, on October 7, 2023, Governor Newsom signed Senate Bill 700 into law amending and expanding the new Section 12954 created by AB 2188.
Under Section 12954, effective January 1, 2024, employers are prohibited from discriminating against employees for off duty marijuana use, are prohibited from requesting information from an applicant for
employment relating to the applicant’s prior use of cannabis and prohibited from using information obtained from a criminal history about an applicant or employee’s prior cannabis use, unless the employer is permitted to consider or inquire about that information under the state’s Fair Chance Act, or other state or federal law.
Section 12954 exempts certain applicants and employees from the law’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance, as specified. Further, Section 12954 specifies that it does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
Specifically, Government Code section 12954 states:
(a) (1) It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(A) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
(B) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
(2) This subdivision does not apply to an employee in the building and construction trades.
(b) (1) It is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.
(2) This subdivision does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law.
(c) This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health
and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.
(d) This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
(e) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
(f) This section shall become operative on January 1, 2024.
What Exactly is Prohibited and Permitted Under Section 12954?
Under Section 12954, employers are prohibited from taking adverse action against a person based on their recreational cannabis use outside of work. Specifically, employers will not be permitted to penalize or fail to hire a person – such as through setting employment terms, employment conditions or by termination – if such action or inaction is based on either (1) Use of cannabis off the job and away from the workplace or (2) Drug testing that tests for nonpsychoactive cannabis metabolites.
Employers are not prohibited, however, from hiring or employment decisions “based on scientifically valid preemployment drug screening” that only tests for active cannabis metabolites that could impair the person at the time of the test. In other words, although the new law does not expressly prohibit employers from requiring employees to take a drug test that screens for nonpsychoactive cannabis metabolites, it does prohibit employers from taking adverse action against an employee based on a test showing positive for nonpsychoactive cannabis metabolites.
Therefore, to avoid unlawful discrimination, an employer-required drug test should screen only for active impairment by the THC compound — not the leftover metabolites. In that same vein, employers may still ensure that employers comply with “the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by federal law or regulation.” In other words, if an employer has a reasonable suspicion an employee is under the influence of marijuana at work, the employer may test for active cannabis metabolites and may discipline that employee if it’s found that they are currently under the influence of marijuana.
As noted above, Section 12954 exempts certain employers from compliance with its prohibitions with respect to testing employees for the use of marijuana while off duty. These categories of employers include those who employee persons who provide labor in the building and construction trades;
and those positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense. Further, the new regulations emphasize that “this section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”
Do Law Enforcement Agencies Have Any Argument for Exemption from the Provisions of Section 12954?
The passage of Section 12954 raises a number of questions as to its implications as applied to sworn law enforcement officer (“LEO”), applicants and employees. First and foremost, it is important to point out that there is no general exemption to Section 12954 for law enforcement personnel. Applying the basic principles of statutory construction, we must give effect to the plain and express language of the statute which specifically exempts only building and construction trades and those hired for positions that require a federal government background investigation or security clearance. In other words, we must assume that had the Legislature intended to exempt LEOs from is provisions, the Legislature would have done so.
However, there are two clear exemptions that may be applicable to law enforcement agencies. First, though Section 12954 makes it unlawful for an employer to request information from an applicant about his or her prior use of cannabis, Section 129543
permits the employer to consider information about the applicant’s “prior cannabis use obtained from the person’s criminal history” if the applicant is seeking a position with a “criminal justice agency.” It is important to note that Section 12954 prohibits employers — including criminal justice agencies — from requesting information “from an applicant” regarding prior cannabis use.” Criminal justice agencies are authorized only to consider information about prior cannabis use “obtained from the person’s criminal history.”
Second, a law enforcement agency that receives federal grant money that carries a condition of drug testing is exempt under Section 12954 subsection (d) and a law enforcement agency that employs persons who are hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense are exempt under subsection (e).
Additionally, an argument may exist that law enforcement agencies can prohibit off- duty marijuana use by its employees under the Gun Control Act of 1968 (“GCA”) codified at 18 U.S.C. § 922(g)(3). The GCA, prohibits any person who is an “unlawful user” of or addicted to any controlled substance from receiving or possessing a firearm or ammunition.
Because marijuana is a federally recognized Schedule I controlled substance, any possession or use is still “unlawful” despite state legalization laws. This exact issue was addressed by the Ninth Circuit in Wilson v.
Lynch, 835 F.3d 1083 (9th Cir. 2016), in which the Court addressed the denial of a firearm sale to a resident of Nevada who possessed a medical marijuana card legal in that state. The Court upheld ATF’s position that the denial of sale was proper and the GCA’s prohibition against the sale or possession of firearms and ammunition by medicinal cannabis users.
Obviously, sworn law enforcement officers possess and carry firearms in the course of their duties. As such, it would seem that law enforcement agencies could prohibit off- duty marijuana use or risk violation of the GCA. This issue is a sticky one, however. The GCA contains a number of exceptions to its prohibition on possession of a firearm by an unlawful drug user, the most important being firearms issued by and for the use by a public entity. Thus, it seems an agency might have an argument that they can prohibit off-duty marijuana use by employees who use their personal weapons to perform their job duties. That argument, however, is far weaker, or perhaps non- existent, if an agency owns and issues the duty weapon.
Many agencies have essential functions of the job criteria that require a LEO to be able to legally possess a firearm and prohibit continued employment as a peace officer if a LEO is unable to legally possess a firearm. As such, an agency that requires its applicants to supply their own firearms for the position without prohibiting off-duty marijuana use would place the applicant in the position of violating the GCA by possessing a firearm in violation of 18 U.S.C. § 922. Additionally, it could be argued that an agency supplying an applicant with a certification under 27 C.F.R. § 478.134 would be assisting the applicant in violating the GCA.
If a person violates the provisions of the GCA, he or she could be punished by imprisonment of a term up to 15 years (a felony), and would potentially be subject to termination and/or decertification if a subsequent test were legally administered by an agency that indicated that the employee currently was impaired by the psychoactive THC component of marijuana. Agencies may wish to carefully consider the implications of this approach, however, given the difficulties in recruitment of qualified candidates currently being experienced in many jurisdictions.
HOW THIS AFFECTS YOUR AGENCY
Though the language of Section 12954 seems clear-cut, its application to law enforcement employers and employees is anything but. Law enforcement agencies should take great care in deciding whether to continue prohibiting off-duty marijuana use by their employees, including reviewing the status of federal grants, status of positions requiring federal government background checks (if any) and agency policies on issuance of duty weapons and/or use of personal weapons on duty.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
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