Key points noted in the guidance include:

• Testing for marijuana is only permissible in extremely limited circumstances (i.e. legally required for the position in question).
• Drug test results cannot serve as an employer's concluding basis that an individual was impaired by marijuana.
• The smell of marijuana itself does not qualify as an articulable symptom of impairment.
• Only "employees" are protected from disciplinary action, meaning the MRTA does not apply to independent contractors, volunteers, and students.

Situations in which employers may take action as it relates to the use of marijuana include when:

• Action is required by state or federal statute, regulation, ordinance or mandate.
• Failure to take action would render the employer in violation of federal law.
• Loss of a federal contract or funding is at risk.
• In the course of active employment a worker displays specific articulable symptoms of cannabis impairment that negatively impact the employee's ability to perform tasks and/or interfere with the employer's obligation to maintain a safe workplace as required by state/federal safety laws.

Additionally, the guidance confirms that employers are still permitted to prohibit cannabis use during work hours as well as possession of cannabis on company property.

Amendment 98 allows employers to maintain drug testing programs, deny employment for drug use on company property and refrain from hiring applicants that test positive for substances other than marijuana. However, the amendment prohibits an employer from discriminating against medical marijuana patients during the application process provided that the position is not formally designated as "safety sensitive." Plaintiff alleges that the position he applied for (Production Associate) was not designated in writing as "safety sensitive" on the application or in any other materials supplied to him by Defendant.

According to the complaint, Defendant extended Plaintiff a conditional employment offer contingent upon a passed drug test and physical. Plaintiff presented a copy of his medical marijuana card when he arrived at his drug test appointment. Plaintiff's test results were positive for marijuana and negative for all other substances. Plaintiff alleges that he was subsequently escorted off the company premises and informed that "he was no longer eligible for hire as a result of the positive drug test for marijuana."

The proposed class includes all those denied employment by Defendant solely for their status as medical marijuana patients, encompassing the one-year timeframe prior to the date the lawsuit was filed. It is estimated that the class will likely include between 40 and 100 members. Beyond a class action status award and jury trial, Plaintiff is also seeking back pay, lost wages, benefits/other compensation denied or lost and reimbursement of legal fees.

"Using technology to proactively find violations of the state's anti-discrimination laws is a powerful strategy for our department to protect Californians' civil rights," said DFEH Director Kevin Kish. "DFEH is committed to preventing employment discrimination through innovative enforcement actions and by providing clear guidance to employers."

Last year, DEFH updated regulations governing background checks and published a Frequently Asked Questions (FAQ) page on the statute. To further assist employers in achieving compliance, the DFEH released a new Fair Chance Toolkit which includes sample forms and guides. In 2022, the DFEH plans to offer an interactive training and an online app.