Drug Users as a Protected Class? Employers’ New Obligations Under the Marijuana Use “Anti-Discrimination” Laws; and California’s Narrow Escape from Legal Psychedelic Mushrooms

Employers must be aware that many aspects of law and society are quickly evolving and old “norms” may not be reliable for dealing with employees in California. This is particularly true regarding use of illicit drugs like marijuana and psychoactive mushrooms. Recently, the California Legislature passed a bill permitting use and possession of certain hallucinogenic drugs, including mushrooms. Governor Newsom wisely vetoed the bill, which likely would have had unintended consequences in the labor force such as causing difficult interactions between employers and drug-impaired employees. Just days after Governor Newsom’s veto, the potentially disastrous consequences of hallucinogens made the news when an off-duty Alaska Airlines pilot allegedly tried to cut the fuel to the engines of a passenger jet after ingesting hallucinogenic mushrooms.

California narrowly avoided legalization of mushrooms, but marijuana is another story. Marijuana has slowly become “legal” on a state level over the past couple of decades. Now marijuana using employees are about to become a protected class. As of January 1, 2024, employers are prohibited from discriminating against a person in hiring, termination, or any term or condition of employment if the discrimination is based on the employee’s use of marijuana off the job and away from the workplace. The employer also cannot discriminate based on the results of an employer-required drug test that has found the person to have “nonpsychoactive cannabis metabolites” in his or her body – in other words, a test showing the employee consumed marijuana at some time in the past but was not “high” at the time of the test. See California Government Code Section 12954. Essentially, an employer cannot discriminate unless the employee is using marijuana at work, or experiencing psychoactive effects at work or at the time of the drug test.

There are a few other exceptions, including when the “rights or obligations of an employer” specified by federal law or regulation prohibit marijuana consumption by employees. The law also does not protect employees in the building and construction trades, or employees hired for jobs that require a federal government background investigation or security clearance. See California Government Code Section 12954(b)-(d).

Employers should be wary of these prohibitions on “discrimination,” as they could subject an employer to litigation and civil or administrative penalties.