Top 4 Things To Know About Cannabis Testing In The Workplace

Are you a California worker who has recently been fired after testing positive after cannabis testing, even though you hadn’t used marijuana for days or weeks? Your boss may have broken the law.

Both recreational and medicinal marijuana are legal in California, but until recently, some employers could fire workers who failed a drug test for cannabis – even if the worker was not visibly impaired while on duty. A new law prohibits that.

Drug Testing Helps Workers Stay Safe

Under California Health and Safety Code section 11362.45(f), all employers have the right to maintain a drug- and alcohol-free workplace.

Maintaining a safe workplace is important for both employers and employees, especially in some safety-sensitive settings where impaired workers could pose a danger to themselves, their co-workers, customers, and others. Drug and alcohol testing helps employers ensure a safe workplace, but overly aggressive testing policies can infringe on a worker’s rights to enjoy legal substances – including marijuana – on their time off.

To help strike a balance between safety and privacy, many states have implemented restrictions on cannabis testing in the workplace.

Drug Testing for Job Applicants and Workers in California

Some employers in California may require applicants to pass a drug test as a condition of their employment. California courts have upheld their right to do so, but only as long as the employer tests all applicants and does not single out an applicant due to their race or other protected characteristics. The courts have also upheld random drug testing for safety-sensitive positions.

However, drug testing should balance the employer’s right to have a drug-free workplace and the worker’s right to privacy during their free time. California recognizes that workers have a stronger claim than job applicants, in that they have already been doing the job and have likely received a job evaluation based on their work history, so theoretically the employer should have to test only when they suspect an employee of working while stoned.

4 Things to Know about AB 2188

1. California’s drug testing rules changed in 2024 when California Assembly Bill (“AB”) 2188 took effect on January 1. The new law (Cal. Gov. Code § 12954 (2024)) says that employers cannot discipline, fire, or take other adverse action against a worker solely because the employee failed a drug test. This law does not protect workers who are clearly impaired while on duty.
2. Under the new law, employers can only drug test workers for recent use of cannabis. Tetrahydrocannabinol (THC) is the active chemical in cannabis that gets the user high. As the body processes (metabolizes) the THC, it breaks it down into chemicals, known as metabolites. These metabolites are non-psychoactive, which means that they do not get the user high. The metabolites do remain in the system for a few weeks. Drug tests that detect these non-psychoactive metabolites indicate that marijuana has been consumed sometime in the past couple of weeks.
3. AB 2188 basically makes it illegal for employers to fire, discriminate against, or otherwise penalize a worker or applicant for:

• Using cannabis off the job and away from the workplace
• Having non-psychoactive metabolites in their bloodstream

4. The new law also requires employers to use approved drug testing    ‘         methods, such as:

• Oral saliva drug test
• THC Breathalyzer drug test
• Blood drug test

Have You Been Fired or Punished for Legally Using Cannabis While Not At Work? Contact Your California Employment Lawyer At D.Law!

Legalization of cannabis has changed drug testing in California. If you think you have been fired or punished for using marijuana while not at work, contact or call D.Law. Our attorneys focus on employment law and can help you exercise your rights as a worker in the Bay Area, San Diego, Fresno, Los Angeles, and other California cities.