Off-the-Clock Marijuana Use Protection Laws

Marijuana on clock

Off-the-Clock Marijuana Use Protection Laws

Jun 17 2023, by Jessica McElfresh in Recreational Marijuana

Marijuana use is widespread throughout California since it is recreationally legal; however, there have been significant challenges for people who test positive at work. Until recently, that positive test was often used to justify the termination of employees who were partaking in marijuana after work hours – not on the job. As of January 1, 2024, that will change. Assembly Bill (AB) 2188, also known as the Adult Use of Marijuana Act (AUMA), protects people who use cannabis outside of work hours.

Is it Legal to Use Marijuana on Your Own Time?

Yes, recreational marijuana use is legal in California if you use it on your own time. There are some restrictions on the use of cannabis. However, if you follow California’s legal guidelines, you can use marijuana off the clock – even if your employer prohibits use at work.

Can You Be Fired or Not Hired for Personal Cannabis Use?

While a person cannot be fired or not hired for personal cannabis use off the job, they can be penalized for being under the influence while on the job. However, that can be difficult for employers to prove because many drug tests do not show proof of current intoxication. There are some exemptions.

Can You Get Fired for Marijuana Use Outside of Work?

Unless you are working in certain industries, the new California law that goes into effect on January 1, 2024, will ensure you cannot get fired for using cannabis on your time.

What about Drug Tests for Marijuana?

California weed drug tests that rely on urine or hair samples test for a substance made by the body when it breaks down the primary psychoactive compound in marijuana. This compound is called THC. It can remain in the body for weeks after using marijuana. Most people who have used the substance recently may test positive, even if not impaired. And “recent” may mean weeks prior to the test.

Despite this, AUMA allows employers to require California pre-employment drug testing as a condition of employment, if the testing does not involve screening for “non-psychoactive cannabis metabolites” in urine, blood, or hair. Employers cannot hire, fire, or take adverse employment actions based on those drug tests. Oral swab tests may be a better indicator of more recent usage of marijuana; however, they are not conclusive either.

Recent Law Strengthens Anti-Employment Discrimination for Cannabis Use

AB 2188 prohibits employers from making discriminatory actions against an employee who has used marijuana while on their own time. That includes not hiring, firing, demoting, failing to promote, or any other adverse employment action. Specifically, employers may not:

  • Refuse to hire someone because of their medical marijuana status
  • Terminate an employee when the employer learns the employee used cannabis on a day off

Taking adverse employment action against someone who uses marijuana is now considered discriminatory. There are still exceptions for specific industries.

Some Exceptions and Limits Apply

Some industries are exempt under AUMA. Building and construction employers and those seeking federal background clearance may still require a clean drug test of potential employees.

The law does not apply to industries where state or federal law requires drug testing to receive federal funding, federal licensing, or a federal contract for work. One reason is that marijuana remains illegal for personal use under federal law.

Contact a California Marijuana Lawyer to Learn More

If you have questions about your specific case, contact a marijuana lawyer who understands the law and can help you navigate the legal process. California marijuana drug testing can be complex. You need someone dedicated to anti-discrimination.

Call McElfresh Law today at (858) 756-7107 or use our online contact form to reach out.