Employment Law and Cannabis: Your Rights Under AB 2188
Recreational cannabis is legal in California. But until recently, your employer could still fire you for using it on your own time. AB 2188, effective January 1, 2024, changed the law — prohibiting most employers from discriminating against employees and applicants based on off-duty cannabis use. The protection is new, specific, and more limited than many employees realize.
California legalized recreational cannabis in 2016. But legalization did not protect employees from adverse action based on cannabis use — until AB 2188 added protections to FEHA, effective January 1, 2024.
The new law does not create a right to use cannabis at work or to be impaired on the job. What it creates is a protection against employer action based on off-duty, off-site cannabis use that does not affect the employee’s job performance.
What the law protects
AB 2188 added Government Code section 12954 to FEHA, making it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based on: the person’s use of cannabis off the job and away from the workplace; or a drug screening test that detects non-psychoactive cannabis metabolites in the person’s hair, blood, urine, or other bodily fluids.
The law distinguishes between non-psychoactive metabolites and active impairment. THC metabolites — the compounds that standard drug tests detect — can remain in the body for weeks after use. Their presence does not indicate current impairment. A positive test for metabolites tells the employer that the employee used cannabis at some point in the past — not that the employee is impaired at work.
AB 2188 prohibits the employer from taking adverse action based on the presence of non-psychoactive metabolites. The employer may still test for active impairment — but it must use tests that measure current impairment rather than past use.
What the law does not protect
On-duty use. The law does not protect cannabis use during work hours or on the employer’s premises. An employee who uses cannabis at work, on a break, or on the employer’s property is not protected.
Impairment at work. The law does not protect an employee who is impaired on the job. An employer that observes signs of impairment — and that has a reasonable basis for concluding the employee is currently impaired — may take adverse action. The prohibition applies to off-duty use that does not affect job performance, not to impairment during work.
Certain industries and positions. AB 2188 exempts employees in the building and construction trades and employees in positions that require a federal government background investigation or security clearance. These employees are not protected by the statute and may be subject to drug testing based on cannabis metabolites.
Federal law. Cannabis remains a Schedule I controlled substance under federal law. Employers that are subject to federal drug-testing requirements — employers in transportation, defense, and other federally regulated industries — may be required to test for cannabis and take adverse action based on positive results, regardless of California’s state law protections.
What employers must change
Before AB 2188, many California employers maintained zero-tolerance drug policies that treated a positive cannabis test as grounds for termination — regardless of when the use occurred or whether the employee was impaired at work. These policies are now unlawful to the extent they rely on non-psychoactive metabolite testing to penalize off-duty use.
Employers must revise their drug testing programs to use tests that measure current impairment rather than past use — or must stop using cannabis test results as a basis for adverse employment action. An employer that terminates an employee based solely on a positive metabolite test — without evidence of on-duty use or current impairment — has violated FEHA.
What employees should know
An employee who uses cannabis legally, off duty and off premises, is protected from adverse action based on that use. If the employer conducts a drug test and takes adverse action based solely on a positive result for non-psychoactive metabolites, the adverse action may violate FEHA — and the employee has the same remedies as any other FEHA discrimination claim: compensatory damages, emotional distress damages, punitive damages, and attorney’s fees.
The protection is new and its application is still developing. Employers and employees are adjusting to the change, and litigation will refine the boundaries. But the core principle is clear: off-duty legal cannabis use, standing alone, is not a basis for adverse employment action in California.
An employee who is terminated or denied employment based on a cannabis test should consult with an attorney to evaluate whether AB 2188 applies to their situation — including whether the exemptions apply and whether the employer’s test measured impairment or metabolites.
If you were fired or denied a job because of a positive cannabis test — and the test detected non-psychoactive metabolites rather than current impairment — the adverse action may violate California law. AB 2188 protects off-duty, off-site cannabis use that does not affect job performance. The employer may test for impairment. It may not penalize you for legal off-duty use.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.