Can a California employer fire you for using cannabis off the clock?

Usually not. Since January 1, 2024, Government Code 12954 bars most California employers from firing or penalizing you for cannabis use off the job, or for a drug test that finds only nonpsychoactive metabolites. Impairment at work, on-duty use and some federally regulated jobs are still outside the protection.

What does California law protect?

Two things. Section 12954(a)(1) makes it unlawful to discriminate against a person in hiring, termination or any term or condition of employment, or to otherwise penalize them, based on either of these:

• The person’s use of cannabis off the job and away from the workplace.
• An employer-required drug screening that finds nonpsychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

The law came from AB 2188, which was chaptered in 2022 and became operative January 1, 2024. A second bill, SB 700, added subdivision (b), which makes it unlawful for an employer to request information from an applicant about prior cannabis use. SB 700 is Chapter 408 of the Statutes of 2023 and also took effect January 1, 2024.

The Civil Rights Department publishes a cannabis FAQ that says the same. The short glossary version is the off-duty cannabis protection entry.

What does it not protect?

It does not protect cannabis use or impairment at work. Subdivision (d) says the law does not permit an employee to possess, be impaired by or use cannabis on the job or at the workplace, and it does not affect an employer’s right to maintain a drug- and alcohol-free workplace. Health and Safety Code 11362.45(f) from Proposition 64 says the same about drug-free workplace policies.

Four exceptions limit the law further:

• Employees in the building and construction trades, per 12954(a)(2).
• Positions that require a federal background investigation or security clearance under federal regulations, per subdivision (f).
• Testing required by state or federal law, including testing a federal contract or federal funding requires, per subdivision (e).
• Information from a criminal history that the employer may lawfully consider, per subdivision (c).

Federal transportation rules show how this plays out. The Department of Transportation says it remains unacceptable for a safety-sensitive employee subject to testing to use marijuana, per its medical marijuana notice. If you drive under DOT rules, state law does not change that.

Remote work raises a fair question: is your home the workplace during your shift? The statute protects use off the job and away from the workplace, so the line is the job, not the address. My reading is that cannabis use during work hours is on the job wherever you sit, and that use on your own time, after you log off, is protected. A policy that spells out work hours leaves less to argue about.

Why is a metabolite test the wrong tool?

Because it measures past use, not impairment. The statute itself calls the metabolites nonpsychoactive. The federal SAMHSA Medical Review Officer guidance describes THCA as the major metabolite of THC and says infrequent use may produce positive tests for one to five days, with longer detection for chronic users. A positive urine test can come from a weekend two days ago.

Picture an offer letter that says the job is yours pending a drug screen, and the screen comes back positive for metabolites only. Before 2024 an employer could pull that offer. Under 12954(a)(1)(B), pulling it for that result alone is discrimination. The same applies to a current employee flagged after a random screen. The employer needs a conduct reason, such as observable impairment at work, not a lab value that says nothing about when you used.

That is why California made the metabolite result a protected basis. The law still allows scientifically valid preemployment screening that does not screen for nonpsychoactive metabolites, per 12954(a)(1)(A). The Civil Rights Department’s FAQ says an employer can use a scientifically valid test that shows THC, but a metabolite-only result generally cannot be the basis for discipline. Check the FAQ for how it treats current employees.

If you worry about impairment, test the thing you care about. A trained supervisor documenting observable signs, such as slurred speech, unsteady movement or the smell of cannabis on duty, is stronger evidence than a lab result that cannot tell you whether anyone was impaired.

How should an employer rewrite its drug policy?

Many policies written before 2024 now conflict with the statute, and a policy that still lists a positive test as automatic grounds for termination is the first thing a complaint will cite. Rewrite it around conduct at work:

• Delete any “zero tolerance” language that penalizes off-duty use or a positive metabolite result.
• Prohibit possession, use and impairment on the job, on premises and during work hours, including remote work hours.
• Define impairment by observable behavior, and train supervisors to document it.
• Remove cannabis questions from applications and interviews.
• Keep testing only where a law or contract requires it, and name that law in the policy.
• Use a test that detects current THC where testing is lawful, and keep metabolite-only results out of decisions.

Then check the exceptions for your roles. Building and construction trades, federally regulated positions and federal contract work may keep their old rules for those jobs. The California HR laws by headcount hub lists where other rules start, and the workplace violence prevention plan guide covers the safety side of a drug-free workplace.

What if you were disciplined?

Write down what happened and when: who said what, what test was used, what the result showed, and what the employer claimed. Keep any policy you were given, and ask in writing what kind of test was used and which written rule you are accused of breaking. Do not guess at an explanation in a meeting; answer the facts and put the rest in writing. Then file a complaint with the Civil Rights Department. The deadline is three years from the date you were last harmed, per the CRD complaint process, which tracks Government Code 12960. You generally must file with the CRD and receive a right-to-sue notice before going to court.

If you raised a concern before the discipline, read the guide on the 90-day retaliation presumption too. An employment attorney can tell you whether the facts support a claim.

What should I do this week?

The fix is small and the exposure is not, so do it now rather than after a complaint. Employers: pull your drug and alcohol policy, application forms and testing vendor contract, and compare them with the list above. Employees: read your policy, note the date of any test, and keep every document from the discipline. If you want a second reviewer for the policy and the rest of your handbook, the California HR compliance check-up covers it.

McKinley holds a J.D. but is not a licensed attorney. Articles here are general information, not legal advice. For your specific situation, talk with an employment attorney.