Question: I’ve heard that, as a business owner, I can no longer ask employees or potential employees about prior marijuana use. Is that true? Does this impact my ability to do criminal background checks?
Answer: Generally, yes. As a general rule, employers cannot ask a job applicant about his or her criminal convictions before the employer has made a conditional job offer. Once a conditional offer has been made, the employer may ask about prior criminal convictions. However, effective January 1, 2024, employers can no longer ask prospective employees about prior marijuana usage.
Since California has legalized the recreational use of marijuana, the Legislature has enacted several new laws intended to protect employees’ ability to use marijuana off-duty without adverse employment consequences. For example, in 2022, California enacted AB 2188, which generally prohibits employers from taking adverse actions against an employee based on the employee’s marijuana use off-duty and away from work. California has also generally banned employers from using the results of certain hair and urine tests for marijuana in making employment decisions.
In October of 2023, Governor Newsom also signed SB 700 into law. SB 700 prohibits most employers from asking current and prospective employees about prior marijuana use. And because the Legislature made SB 700 part of the California Fair Employment and Housing Act, violations of this provision come with the typical risks associated with discrimination claims, including attorneys’ fees.
Notably, SB 700 also applies to “information” an employer obtains “about a person’s prior cannabis use” from a criminal background check. The scope of this provision—and its impact on criminal background checks—remains to be seen. For example, under SB 700 an employer most likely cannot rely on information in a person’s criminal history related to mere marijuana possession when making a hiring decision or taking disciplinary action. But SB 700 does not appear to apply to other information unrelated to simple marijuana use, such as convictions for distribution, manufacture, or sale of marijuana. So, an employer may be able to rely on criminal history information that goes beyond mere marijuana use when, for example, making a hiring decision.
SB 700 does have other limitations. For example, employees in the “building and construction trades” are exempt from SB 700’s protections. So, employers in those trades can still ask about prior marijuana use. This provision also does not apply to jobs that require federal background checks. SB 700 also does not displace state or federal laws that otherwise require testing employees for controlled substances as a condition of receiving federal funds or entering into federal contracts.
And, most importantly, employers are not prohibited from restricting the on-the-job impairment by, or possession and use of, marijuana. In other words, employers still have the right to maintain a drug- and alcohol-free workplace.
Overall, SB 700 is part of California’s increasing trend in favor of protecting employees’ rights to engage in lawful, off-duty marijuana use. While this new law contains important exceptions, employers are encouraged to carefully review their hiring and discipline practices and background check procedures to ensure compliance with this new law.