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by Erika M. Barbara, J.D.; Senior Employment Law Counsel, CalChamber
For over thirty years, California has been at the forefront of the movement to legalize medical and recreational marijuana use, creating issues for California employers to navigate.
Most recently, California expanded their anti-discrimination laws to protect off-duty use of cannabis, also known as marijuana, weed or pot. While applicants and employees gain additional protections, California employers must comply with more restrictions on their drug-free workplace policies and practices.
California employers can still enforce their drug-free workplace policies but must also comply with California’s anti-discrimination laws in hiring and drug testing.
In 1996, California became the first state to legalize medical marijuana use when voters passed Proposition 215, the Compassionate Use Act. Twenty years later, California voters passed Proposition 64, the Adult Use of Marijuana Act — legalizing recreational marijuana use by adults 21 years and older.
Most recently, in 2024, laws regarding marijuana use and the workplace changed, creating additional challenges for employers, including around drug testing applicants and employees for marijuana.
Even though medical and recreational marijuana use is legal in California, employers can still maintain drug-free workplace policies as well as prohibit marijuana use and possession in the workplace.
Although Proposition 64 legalized recreational marijuana use, it explicitly states that it intended to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Further, the proposition could not be construed or interpreted to amend, repeal, affect, restrict or preempt:
“The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
Thus, employers still have the ability to maintain drug-free workplace policies, prohibit marijuana use in the workplace, conduct drug testing and discipline employees for marijuana possession and use at work.
In addition, under federal law, marijuana is still an illegal Schedule I substance.
Once recreational marijuana use became legal in California, many employers had to decide whether to continue drug testing for marijuana.
Unlike other drugs, marijuana compounds and metabolites can stay in a person’s system after they’re no longer impaired by its use — meaning someone can test positive for marijuana even when they’re not impaired and have not used the drug for days or weeks.
While some employers continued to include marijuana in their pre-employment drug testing, others chose not to test for marijuana, fearing it would significantly narrow their applicant pool by eliminating anyone who would test positive because they used marijuana recreationally.
In 2024, amendments to California’s Fair Employment and Housing Act (FEHA) further complicated how employers could enforce their drug-free workplace policies.
Beginning January 1, 2024, the FEHA protects applicants and employees who use cannabis off the job and away from the workplace. These protections limit what information California employers can obtain from applicants and employees about their off-duty cannabis use, what employers can do with that information and how employers can test for cannabis use.
Employers with five or more employees are prohibited from discriminating against an applicant or employee based on the person’s use of cannabis off the job and away from the workplace. In other words, off-duty use of cannabis functions as a protected class under California law and cannot be the basis for discrimination.
Now, employers cannot refuse to hire an applicant because of their off-duty use of cannabis. For example, if an employer learns that an applicant uses cannabis — such as by reviewing the applicant’s social media during the hiring process (which can be problematic for many reasons) — the employer cannot use that information as a reason for not hiring the applicant.
Employers also cannot terminate, penalize or otherwise discriminate against a current employee based on their off-duty use of cannabis. If an employer learns that an employee is using cannabis while they are off-duty and not in the workplace, the employee cannot be disciplined or terminated because of that use. To do so would risk a discrimination claim under the FEHA.
The law has some exceptions; for instance, it doesn’t:
Employers with concerns about whether the law applies to their employees should consult legal counsel.
Keep in mind that this protection only applies to off-duty use. Employees are not protected if they use cannabis and come to work impaired or use cannabis while at work. California employers can still enforce drug-free workplace policies and address cannabis use in the workplace.
Another 2024 change prohibits employers from asking a job applicant about cannabis use. Employers should ensure that their job applications and interview questions do not seek any such information from applicants.
The restriction on obtaining cannabis use information also applies when employers are conducting criminal background checks. If an employer learns of cannabis use through a criminal background check, it cannot consider that information without following the state’s Fair Chance Act, which places strict limits on when and how employers can obtain and consider criminal history in employment decisions.
Although these FEHA changes altered how employers can address cannabis use, employers can still use drug testing as a tool for maintaining a drug-free workplace.
However, the type of cannabis tests that employers can use are limited. Now, employers can only use tests that screen for active impairment, meaning tests that screen for non-psychoactive cannabis metabolites — which indicate only that a person used cannabis in the past but is not currently impaired — can’t be used.
This new restriction addresses the fact that cannabis stays in a person’s system even after they’re no longer impaired, and a positive test result may not necessarily indicate that the person was impaired by cannabis at the time the test was taken.
Employers who test for cannabis should ensure that they are using tests that do not screen for non-psychoactive cannabis metabolites. If employers are using a national drug testing company, they should confirm that the proper tests are being used for their California applicants and employees.
This testing restriction applies to both pre-employment drug testing and testing of current employees, such as through reasonable suspicion testing.
If an applicant fails a valid pre-employment drug screening, employers can use that as a basis for rescinding the employment offer. Similarly, a current employee who fails a legally compliant drug test can be subject to discipline, including termination. However, before acting on a positive cannabis screening, employers should ensure the test used is legally complaint.
Employers with concerns about their drug testing policies and practices should consult with legal counsel.
The California Civil Rights Department (CRD) is tasked with enforcing the FEHA, including the new protections for off-duty cannabis use. The CRD has issued a Discrimination in Employment: Use of Cannabis FAQ that provides guidance for employers on how to comply with the law. In addition, in March 2025, the CRD reported that it reached its first settlement of a cannabis discrimination claim.
Employers still have the right to maintain a drug-free workplace but must be careful to follow the recent anti-discrimination changes to the law. At a minimum, employers should: