Cannabis Protections in Employment

CANNABIS PROTECTIONS IN EMPLOYMENT

Employers with five or more employees will be prohibited from discriminating against an applicant or employee for using cannabis off-duty and away from the workplace. This includes discriminating based on a drug test that finds non-psychoactive cannabis metabolites in their system. Non-psychoactive cannabis metabolites are what’s stored in the body after THC (which causes the “high”) is metabolized. Their presence means that cannabis was consumed but doesn’t indicate that a person is currently impaired.

Additionally, employers can’t ask about an applicant’s prior use of cannabis or consider information about an applicant’s or employee’s prior cannabis use. This includes making decisions based on information revealed in their criminal history, unless doing so is allowed by state or federal law.

Employers can still make employment decisions based on drug tests that don’t screen for non-psychoactive cannabis metabolites. Employers can also continue to take steps to ensure a drug free workplace, such as prohibiting employees from having or using cannabis at work or being impaired on the job.

The law contains certain exceptions, including but not limited to, employees in building and construction, and positions for which drug testing is governed by federal or state law, a federal contract, or as a condition of receiving federal funds or licensing.

Action Items

• Review your drug screening policies to make sure they’re in compliance.
• Update any equal employment opportunity policies to include off-duty and off-premises use of cannabis.
• Ensure managers and those involved in the hiring process know that they can’t ask about or consider an applicant’s off-duty cannabis use.

REPRODUCTIVE LOSS LEAVE

Employers with five or more employees will be required to provide employees who have been employed for at least 30 days with up to five days of leave when they experience a reproductive loss.

A reproductive loss includes a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. Reproductive loss leave can be taken by any employee who would have been the parent.

Generally, the leave must be completed within three months of the loss and days can be taken intermittently. The leave can be unpaid unless the employer has an existing paid leave policy that would apply. If unpaid, employees can choose to use any available paid leave, including accrued sick leave. Reproductive loss leave is in addition to all other state leave rights and does not run concurrently with CFRA or PDL. For employees who experience multiple losses, employers can cap leave at 20 days in a 12-month period.

Action Item

• Add a reproductive loss leave policy to your employee handbook or other policy documents.

NEW NOTICE REQUIREMENT FOR NEW HIRES

All employers need to provide new employees with notice about any federal or state emergency or disaster declaration that applies to any county where the employee will perform work and that may affect their health and safety on the job, if the declaration was issued in the 30 days prior to their start date. The Department of Industrial Relations has already updated its NOTICE TO EMPLOYEE template.

SICK LEAVE REMINDER 

40 is the new 24. While the accrual rate has remained unchanged (1 hour per 30 hours worked) employers must increase the amount of sick leave their employees can use each year from 24 hours or three days to 40 hours or five days. The total (rolling) accrual cap is now 80 hours or 10 days (instead of 48 hours or six days). More information is available on the platform, and the state recently released FAQs.

MINIMUM WAGES AND SALARIES

Statewide Minimum Wage
California’s minimum wage for all employers, regardless of size, will increase to $16 per hour.

Exempt Employee Minimum Salaries and Wages
The minimum salary threshold for exempt employees will increase to $1,280 per week ($66,560 per year) for employers regardless of their employee count.
The minimum hourly rate for exempt computer software employees will increase to $55.58 per hour (or an annual salary of $115,763.35).
The minimum rate for exempt licensed physicians and surgeons paid on an hourly basis will increase to $101.22 per hour.

Local Minimum Wages
The hourly minimum wage will also increase in the following cities:
Belmont: $17.35
Burlingame: $17.03
Cupertino: $17.75
Daly City: $16.62
East Palo Alto: $17
El Cerrito: $17.92
Foster City: $17
Half Moon Bay: $17.01
Hayward (25 or fewer employees): $16 (state rate)
Hayward (26 or more employees): $16.90
Los Altos: $17.75
Menlo Park: $16.70
Mountain View: $18.75
Novato (25 or fewer employees): $16.04
Novato (26–99 employees): $16.60
Novato (100 or more employees): $16.86
Oakland: $16.50
Oakland (hotels with health benefits): $17.94
Oakland (hotels without health benefits): $23.91
Palo Alto: $17.80
Petaluma: $17.45
Redwood City: $17.70
Richmond (with benefits): $16 (state rate)
Richmond (without benefits): $17.20
San Carlos: $16.87
San Diego: $16.85
San José: $17.55
San Mateo City: $17.35
San Mateo County (unincorporated areas only): $17.06
Santa Clara: $17.75
Santa Rosa: $17.45
Sonoma City (25 or fewer employees): $16.56
Sonoma City (26 or more employees): $17.60
South San Francisco: $17.25
Sunnyvale: $18.55