Can I be Fired for Using Cannabis Off the Clock?

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Posted by Legal Team On September 27, 2023

Californians were legally permitted to use cannabis recreationally in January 2018 under Proposition 64. While this law made the possession of cannabis legal, it did not address or protect an employee from potential backlash from off-the-clock use of cannabis. The law will soon change.

How will this new law affect employees who use cannabis off the clock, and can an employer fire a worker for their use? Reviewing each job’s description to understand its classification and if new laws will protect an employee is critical.

AB 2188

On January 1, 2024, AB 2188 will take effect, protecting against discrimination for workers who choose to use cannabis away from the workplace while off duty. There will still be industry workers who are exempt from this protection. The law will provide protection against punishment by employers for workers who:

  • When seeking employment, are found to use cannabis off the clock
  • Are currently employed and use cannabis while off the clock
  • Are found to have nonpsychoactive cannabis metabolites in their system during an administered drug test

While protecting workers off the clock for cannabis use, it is vital to point out that this bill does not protect employees:

  • Possessing cannabis at work
  • Using cannabis at work
  • Are impaired at work

Employers will still possess the right to enforce a drug-free work environment.

California Employees Exempt from AB 2188 Protection

Certain employees will be exempt from the protections offered by this law. Reviewing a job’s requirements ensures that employees are meeting all company standards. If your job does not meet exemption specifications and you are unfairly targeted, it is imperative to seek the help of a Northern California employees’ rights attorney.

Employees in the following fields exempt from the protections of AB 2188(c)(d)(e) include:

  • Employees requiring federal background and clearance checks
  • Construction
  • Building
  • Employees subject to state or federal regulations

This may not be a complete list of employees exempt from protection. However, discrimination is prohibited in the workplace, and wrongful termination should be addressed.

Can Drug Tests Still be Required as an Employment Prerequisite?

Employers can still require pre-employment drug testing after AB 2188 goes into effect, but employment decisions based on the presence of nonpsychoactive cannabis metabolites will be unlawful. Metabolized THC is stored in the body as nonpsychoactive metabolites. While their presence indicates exposure to cannabis, it does not offer proof of the dose or pattern of use (Clinical Significance) and that an employee is impaired.

Employers seeking to continue using drug tests will now have to access and apply testing that complies with new laws. Urine tests have been standard for drug testing for years, identifying the presence of cannabis in the body for days and sometimes weeks after its use. This test will now be inadequate because it does not indicate impairment.

Compliant drug testing should be in place before January 1, 2024. Employers wishing to use impairment tests may do so. Until this law takes effect, employees may still be fired for failing a drug test in California.

Protection From Workplace Discrimination in California

As an employee, individuals have the right to protection against discrimination in the workplace. Speak with a California discrimination attorney if your right to privacy has been violated. The Armstrong Law Firm offers free consultations to explain how we can help you pursue action against an employer for discriminatory practices.