As California has highly liberal rules and regulations regarding the recreational and medical use of marijuana in the state, many workers believe that they can engage in marijuana use without workplace repercussions. Employment laws surrounding marijuana use, however, are highly complex. Therefore, workers who are facing negative repercussions for marijuana use commonly wonder, can I be fired for marijuana use off the job in California?

A Quick Review of California’s Marijuana Laws

Proposition 64 was passed in California in 2016 and legalized the recreational use of marijuana for adults aged 21 and older. Based on this law, adults can use, possess, and purchase limited amounts of marijuana as well as grow certain amounts of their own at home.

Although Proposition 64 made marijuana use for recreational reasons, it enforced certain workplace restrictions. Under Prop 64, employers are allowed to implement and enforce drug-free workplace measures and discipline workers who’ve failed to comply with their policies. While recreational use of marijuana may be legal in the state, workers’ rights surrounding the issue remained highly limited.

The Introduction of Assembly Bill No. 2188

On September 18th, 2022, Assembly Bill No. 2188 was signed into law by Governor Gavin Newsom and became effective on January 1st, 2024. AB 2188 provides stronger employee protections for marijuana users by making it illegal for employers to take action or discriminate against employees based on their off-duty marijuana use. It expands on protections against discrimination laid out by the California Fair Employment and Housing Act.

AB 2188 particularly targets non-modern methods of testing, such as those that test positive for non-psychoactive cannabis metabolites. Traces of metabolites can be found in parts of the body for days or even weeks. They are not, however, indicative that a person is impaired. Under AB 2188, employers are encouraged to use tests that detect active THC or impairment to screen for marijuana use during workplace hours.

If you have been fired in 2024 or faced other forms of workplace retaliation based on a positive test for non-active, non-psychoactive cannabis metabolites, you may have faced discrimination under the California Fair Employment and Housing Act. If this scenario applies to you, it is critical to seek experienced legal representation so that you can protect your workplace rights and pursue compensation for damages.

Exceptions to AB2188

There are certain exemptions where employees do not receive workplace protections related to marijuana use under AB 2188. Occupations that are safety-sensitive, such as those involving heavy machinery operation, face possible termination if they are found under the influence of marijuana. Employers required to follow federal drug-free workplace policies, specifically those in federally regulated industries or receiving federal contracts, are not protected.

If you are facing negative repercussions at work or termination due to marijuana use, an experienced employment lawyer can help you understand your rights in the context of this highly complex and evolving legal landscape. They can analyze key evidence, such as the type of work you do, the industry you are in, and your employer’s actions, to determine whether you have legal grounds for a case.

While recreational marijuana is still federally illegal, the state’s recognition of its use creates a complicated path to navigate for both employers and employees. For some, marijuana is considered like alcohol in that it impairs your ability to respond to emergencies or other elements of your job. For others, however, it is a medically prescribed tool that can help to overcome a variety of health challenges and keep you working and supporting yourself and your family.

FAQs

Q: Can You Get Fired for Marijuana Use in California?

A: Although marijuana use is legal for recreational and medicinal purposes in the state of California, workers can still be fired for using the drug. Under California law, employers have the right to enforce drug-free workplace policies, which may include banning the use of the drug. Even if your marijuana use is strictly limited to off-the-job use, you can still be fired for this if you work in a federally regulated industry or have a safety-sensitive job.

Q: Can My CA Employer Drug Test Me for Marijuana?

A: It is legal for California employers to enforce marijuana drug use policies that involve drug testing for the substance. Employers may particularly have this right as a part of pre-employment screening or in industries that require extreme vigilance or safety precautions. Drug testing for marijuana, however, may be illegal in some circumstances in this state, such as testing after an incident, random drug testing, or using certain non-modern methods.

Q: Is Off-Duty Marijuana Use Legal in California?

A: Although the use of marijuana for medical and recreational purchases is legal in the state of California, this does not necessarily protect workers from facing drug use-related consequences while on the job. Employers in certain industries can still enforce drug policies that ban the use of marijuana while off duty, terminating employees who test positive for marijuana. Under AB 2188, however, workers can generally not face workplace discrimination based on this.

Q: What Are My Marijuana Rights as a CA Employee?

A: Although California workers have the right to recreationally or medically use marijuana, these rights do not extend to legal protections in the workplace. Some employers have the right to create and enforce measures for a drug-free workplace, meaning that workers can face consequences for subsequent violations, such as suspension or termination. It’s important to note, however, that off-duty marijuana use is generally protected for workers under AB 2188.

Contact Our California Employment Law Attorneys

Although California has progressive marijuana laws, employees are not always protected from being terminated for off-duty marijuana use. Such cases are highly complex and are dependent on various legal considerations, such as the job position and industry, as well as employer drug policies.

If you are facing discrimination or disciplinary action because of off-duty marijuana use, an experienced employment lawyer from Theory Law can help you understand your rights in the backdrop of the complex legal landscape. Contact us today to get started exercising your rights.