Prior marijuana use – no questions asked? – Monterey Herald – Medical Marijuana Program Connection

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 Jan. 1 this year, 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 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…