California Assembly Bill 2188, now codified at Government Code Section 12954, makes it illegal for most employers in the state to fire, refuse to hire, or otherwise penalize you because you use cannabis off the job and away from work. The law took effect January 1, 2024, and Senate Bill 700 added a companion protection that bars employers from asking job applicants about prior cannabis use.1California Legislative Information. California Government Code 12954 Because these protections sit inside the Fair Employment and Housing Act (FEHA), a violation carries the same legal weight as any other form of workplace discrimination.
What the Law Protects
The core rule is simple. Your employer cannot discriminate against you in hiring, firing, or any other employment decision because you use cannabis on your own time, away from the workplace. That protection covers both applicants and current employees.1California Legislative Information. California Government Code 12954
The law also prohibits employers from penalizing you based on a drug test that detected nonpsychoactive cannabis metabolites in your hair, blood, urine, or other bodily fluids.1California Legislative Information. California Government Code 12954 Metabolites are chemical leftovers that linger for days or weeks after use. They show past consumption but say nothing about whether you are impaired right now.
Questions Employers Can No Longer Ask
SB 700, effective the same day, added a separate rule: employers cannot ask job applicants about prior cannabis use.2California Legislative Information. Bill Text – SB 700 Employment Discrimination: Cannabis Use Questions like “Have you ever used marijuana?” on an application or in an interview are off limits.
There is one narrow carve-out. If an employer learns about prior cannabis use through your criminal history, that information is still subject to the anti-discrimination protections unless the employer is separately permitted to consider it under California’s Fair Chance Act or another state or federal law.1California Legislative Information. California Government Code 12954 Even a cannabis-related criminal record does not give employers a free pass.
Drug Testing That Is Still Allowed
The law did not ban drug testing. It changed which results employers can act on. Traditional urine and hair follicle tests detect nonpsychoactive metabolites rather than active THC, and using those results against you now violates FEHA.1California Legislative Information. California Government Code 12954
Employers who still want to screen for cannabis can use two categories of compliant testing: oral fluid tests that detect active THC in bodily fluids, and impairment tests that measure real-time performance against an employee’s established baseline.3California Legislative Information. Bill Text – AB 2188 Discrimination in Employment: Use of Cannabis Saliva tests are the more common choice because THC only remains detectable for a short window, which better reflects recent use.
Pre-employment screening is still permitted as long as the test looks for active THC rather than inert metabolites.1California Legislative Information. California Government Code 12954 If a compliant saliva test comes back positive, that result is fair game.
What the Law Does Not Protect
Nothing in Section 12954 gives you the right to use cannabis at work, show up impaired, or possess cannabis on company property. The statute expressly preserves the employer’s right to maintain a drug- and alcohol-free workplace.1California Legislative Information. California Government Code 12954 An employer who fires you for being visibly impaired during a shift has not violated AB 2188. An employer who rescinds a job offer because a metabolite-based urine test came back positive has.
Workers Who Are Exempt
Several groups fall outside these protections. Check whether you’re covered before relying on the law.
Building and Construction Trades
Employees in the building and construction trades are fully exempt from the anti-discrimination protections in subdivision (a).1California Legislative Information. California Government Code 12954 Employers in those industries can continue using traditional drug testing methods and acting on the results.
Federal Security Clearance Positions
If your position requires a federal government background investigation or security clearance under Department of Defense regulations or an equivalent federal agency, Section 12954 does not apply to you.1California Legislative Information. California Government Code 12954 Cannabis remains a disqualifying factor for most federal clearances, and state law cannot override that.
Federally Mandated Drug Testing
The law does not preempt any state or federal rules that require drug testing as a condition of employment, receiving federal funding, or entering into a federal contract.1California Legislative Information. California Government Code 12954 The clearest example is Department of Transportation testing. DOT regulations under 49 CFR Part 40 require marijuana testing for safety-sensitive transportation positions, and DOT has stated that this will not change even if cannabis is rescheduled federally.4U.S. Department of Transportation. DOT Notice on Testing for Marijuana Truck drivers, pilots, railroad workers, and transit operators remain subject to traditional cannabis testing regardless of AB 2188.
The federal Drug-Free Workplace Act separately requires organizations holding certain federal contracts or grants to maintain drug-free workplace policies and notify employees that controlled substance use in the workplace is prohibited.5Office of the Law Revision Counsel. United States Code Title 41 Section 8102 Employers with both federally regulated and non-regulated roles often run separate drug testing policies for each group. If you’re unsure which applies to your job, ask HR directly.
Federal Rescheduling Does Not Expand These Rights
The federal government is moving toward reclassifying marijuana from Schedule I to Schedule III, but that shift will not relax federal workplace testing rules. DOT has confirmed that rescheduling will not change its mandatory testing requirements for safety-sensitive positions.4U.S. Department of Transportation. DOT Notice on Testing for Marijuana Rescheduling is not legalization. For most California employees covered by AB 2188, your state-level protections already apply and don’t depend on federal scheduling. If you work in a federally regulated role, a scheduling change will not expand your rights.
How to Enforce Your Rights
Because Section 12954 lives inside FEHA, enforcement follows the same path as any other California employment discrimination claim. You can file a complaint with the California Civil Rights Department (CRD) or go directly to court.
To file with CRD, you submit an intake form and then interview with a department representative who evaluates whether the complaint can be accepted for investigation. You have three years from the date of the last discriminatory act to file.6Civil Rights Department. Complaint Process Three years sounds generous, but documentation fades and witnesses forget. Sooner is better.
If you want to skip the CRD investigation and file your own lawsuit, you still have to request an immediate Right-to-Sue notice from CRD first.7Civil Rights Department. Obtain a Right to Sue Without one, you can’t walk into court.
The remedies under FEHA are substantial. A successful claim can result in back pay, front pay for future lost earnings, reinstatement or hiring, damages for emotional distress, punitive damages, and attorney’s fees and costs.8Civil Rights Department. Employment Remedies Courts can also order employers to change their policies and train their staff.9California Legislative Information. California Government Code 12965 The prevailing party can recover reasonable attorney’s fees, which puts a strong case within reach for most employees.