Cannabis Use and Drug Testing at Work in California

Since January 1, 2024, most California employers cannot refuse to hire, fire or punish you for using cannabis off the job and away from work, or because a drug test found non-psychoactive cannabis metabolites in your system. That rule comes from Assembly Bill 2188, now Gov. Code 12954. A companion law, Senate Bill 700, also bars most employers from asking job applicants about past cannabis use.

This matters because the most common workplace drug test, a urine test, detects a cannabis metabolite that can stay in the body for days or weeks after use. It shows past use, not impairment. A worker who loses a $70,000-a-year job offer over that kind of test, and spends three months finding another job, has lost about $17,500 in wages, and may now have a discrimination claim.

This guide explains what the law protects, what employers can still do, the exceptions, which tests are allowed, how medical use fits in, what you can recover, and what to do if a drug test cost you a job.

What AB 2188 protects

Gov. Code 12954 makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, because of:

• The person’s use of cannabis off the job and away from the workplace; or
• An employer-required drug screening test that found the person has non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.

A non-psychoactive metabolite is a compound left over after the body processes THC. It doesn’t cause impairment and doesn’t show that someone is currently impaired; it only indicates past use. Standard urine and hair tests generally look for these metabolites.

The protection applies to applicants and current employees at employers covered by the Fair Employment and Housing Act, which generally means employers with five or more employees, including public employers.

Key fact

What employers can still do

AB 2188 is not a license to use cannabis at work. Employers can still:

• Prohibit possessing, using or being impaired by cannabis on the job
• Maintain a drug- and alcohol-free workplace
• Discipline or fire an employee who is actually impaired at work, based on evidence such as observed behavior
• Use drug tests that detect psychoactive THC rather than non-psychoactive metabolites, in many situations
• Make decisions for legitimate reasons that have nothing to do with off-duty cannabis use

Pre-employment and reasonable-suspicion testing are still allowed. The difference is in the details: the employer must use a test that doesn’t rely on non-psychoactive metabolites, or base its decision on something other than lawful off-duty use. A test result alone that shows only past use is generally not enough at a covered employer.

The key question in most cases is what the employer actually relied on: evidence of impairment at work, or evidence of lawful use on your own time.

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Which drug tests are allowed

Because the law turns on what a test detects, the type of test matters.

Test	What it generally detects	Can it be the basis for an adverse decision?
Urine test (standard panel)	Non-psychoactive metabolites showing past use	Generally no, at covered employers
Hair test	Metabolites showing use over a long period	Generally no, at covered employers
Oral fluid (saliva) test	THC itself, suggesting more recent use	Often yes
Blood test for THC	THC itself	Often yes
Observed impairment on the job	Behavior, not a lab result	Yes

Testing technology and how labs report results vary, so a lawyer should look at the actual test and report in your case.

SB 700: questions about past cannabis use

SB 700 added a second protection to Gov. Code 12954. Employers generally cannot ask job applicants about their prior use of cannabis. And information about a person’s prior cannabis use that an employer gets from a criminal history cannot be used against them, unless the employer is permitted to consider it under the Fair Chance Act (Gov. Code 12952) or another state or federal law.

If an application or interview asked whether you have ever used marijuana, that question itself may violate the law at a covered employer. For more on how criminal records can and cannot be used in hiring, see our guide to the California Fair Chance Act.

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Exceptions: when the protections don’t apply

• Building and construction trades. The law does not apply to employees in the building and construction trades.
• Federal background checks and security clearances. It does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance under Department of Defense regulations or equivalent rules of another federal agency.
• Federal law and federal requirements. It does not preempt state or federal laws that require employers to test for controlled substances, including as a condition of federal funding, federal licensing-related benefits, or a federal contract. For example, truck drivers, pilots and other workers in federally regulated safety-sensitive jobs remain subject to federal Department of Transportation drug testing rules.

Read the exceptions closely. The construction exception refers to employees in the building and construction trades; an office worker at a construction company may not fall within it. Likewise, the federal exceptions apply to positions that actually require a federal clearance or federally mandated test, not to every job at a company that has some federal contracts.

Employers sometimes stretch these exceptions. Whether your job truly falls within one is a fact question worth having a lawyer review.

By the numbers3 years

Medical cannabis and disability

Before AB 2188, the California Supreme Court held in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920 that FEHA did not require employers to accommodate medical marijuana use. AB 2188 changes the landscape by protecting off-duty, off-site use generally, whether recreational or medical, at covered employers.

The medical condition behind your cannabis use may also be a protected disability. An employer that learns of your condition must still engage in the interactive process and provide reasonable accommodation under FEHA. Treating you differently because of the condition can be disability discrimination.

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What you can recover

A violation of Gov. Code 12954 is a form of employment discrimination under FEHA. Remedies can include:

• Lost wages and benefits, including from a rescinded job offer
• Emotional distress damages
• Punitive damages in cases of malice, oppression or fraud
• Attorney’s fees and costs (Gov. Code 12965)

💡 Example: Derek accepted a warehouse supervisor offer at $70,000 a year. A pre-employment urine test came back positive for a cannabis metabolite from weekend use, and the offer was withdrawn. The job is not in construction and requires no federal clearance. It takes him 3 months to find comparable work. His lost wages: 3 × ($70,000 ÷ 12) = $17,500, before emotional distress damages and fees.

Like other FEHA claims, you must file with the Civil Rights Department, generally within three years. See how to file a CRD complaint and get a right-to-sue notice.

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What to do if a drug test cost you a job

1. Get the test details. Ask what type of test was used and what substance it detected. Save any lab report or result notice.
2. Save the paperwork: the offer letter, rescission email, termination notice and drug testing policy.
3. Write down what you were told about why the offer was withdrawn or why you were fired, word for word if you can.
4. Note any questions about past cannabis use on applications or in interviews.
5. Note when you last used cannabis and confirm it was off duty and away from work. Share those details only with your lawyer.
6. Don’t sign a release or separation agreement before getting advice.
7. Talk to an employment lawyer about whether an exception applies and how strong the claim is.

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Drug testing issues are often the tip of the iceberg

Employers that test improperly often have other unlawful hiring practices, such as asking about criminal history before a conditional offer or screening out applicants with disabilities. California’s constitutional right to privacy can also limit random drug testing of current employees in some jobs. An employer that withdraws an offer after a background check must also follow the Fair Chance Act’s notice process if criminal history played any role. When we review a drug-testing case, we look at the whole hiring and firing process, not just the test. Our workplace discrimination page explains how we handle these cases.

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Frequently asked questions

Can I be fired for being high at work?

Yes. AB 2188 protects off-duty, off-site use. It does not protect using cannabis at work or being impaired on the job.

Can my employer test me after an accident?

Employers can test after accidents, but at covered employers they generally cannot act on a result that shows only non-psychoactive metabolites. Evidence of actual impairment is a different matter.

Can an employer ask if I have ever used marijuana?

Generally no. Under SB 700, covered employers cannot ask applicants about prior cannabis use, unless an exception applies.

I drive a truck under federal DOT rules. Am I protected?

Usually not for DOT-required testing. Federal drug testing rules for safety-sensitive transportation jobs still apply.

My employer has a zero-tolerance drug policy. Does that override the law?

No. A company policy cannot authorize what state law prohibits. At a covered employer, a zero-tolerance policy can still ban use and impairment at work, but it cannot be used to punish lawful off-duty use detected only through non-psychoactive metabolites.

Does the law protect current employees, or only applicants?

Both. Gov. Code 12954 covers hiring, firing and any term or condition of employment.

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