Can You Be Fired for Smoking Marijuana in California?

Starting in 2024, employers in California can no longer fire employees for smoking marijuana on their own time.

By , Attorney (UCLA School of Law)

While there's no question that it's legal to smoke marijuana in California, the law gets a bit more complicated when it comes to your job.

Employment in California is "at will," so employers can fire you for virtually any reason other than discrimination. Historically, that's meant that not only could you be fired for smoking marijuana on the job, you could even be fired for smoking at home during your time off.

Recent changes to the law partially reverse this rule. Now, you can generally smoke marijuana on your own time without worrying about adverse employment consequences. What's more, privacy protections in California's Constitution mean that employers can't require you to submit to drug testing except in very limited circumstances.

However, employers still may fire or discipline someone for drug use, possession, or impairment that occurs on the job.

Here's a breakdown of California law with respect to marijuana use and the workplace.

Marijuana Use While Off-Duty and Off-Site

Marijuana use has long been legal in the Golden State: California approved medical marijuana in 1996 and recreational marijuana in 2016.

But that hasn't stopped some employers from firing workers for off-duty marijuana use. And until recently, employers were within their rights to do so. They were protected by "at will" employment laws, which allow employers to fire workers for almost any reason as long as it's not discriminatory.

A new law changes the rules for workers who use cannabis off the job. As of January 1, 2024, it is considered discriminatory to fire someone based on their use of marijuana while off the job and away from the workplace. Under an amendment to the Fair Employment and Housing Act (FEHA)—the state's employment antidiscrimination law—employers can't terminate, refuse to hire, or otherwise discriminate against employees for their off-duty, off-site cannabis use. (Cal. Gov't. Code § 12954 (2024).)

In addition, employers are no longer allowed to discriminate against workers based on drug test results showing evidence of past marijuana use in the form of cannabis metabolites. Cannabis metabolites remain in the body for weeks after marijuana use and a positive test for metabolites doesn't mean that an employee is impaired at the time of testing.

Finally, employers are no longer permitted to ask prospective employees about their past marijuana use, nor can they request any information from job applicants about their prior use of cannabis. Even if an employer finds evidence of prior cannabis use during a criminal background check, they may not discriminate against a worker based on this information, unless another law allows them to consider it.

Exceptions to California's Marijuana Use Discrimination Law

The 2024 amendment to FEHA does not apply to workers who require a federal government background check or security clearance, or to workers in the building and construction trades.

Employers may legally discriminate against these workers based on cannabis use off the job and away from the workplace. However, the law does apply to workers in all other safety-sensitive industries, such as manufacturing and transportation. The law is not intended to supplant other state or federal laws that require drug testing.

Marijuana Use On the Job

The 2024 law doesn't change the fact that employers may fire or discipline someone for drug use, possession, or impairment on the job.

While employers can't discriminate based on drug test results showing past marijuana use, they can make adverse hiring decisions based on tests that screen for current drug use. This could include impairment tests as well as tests that screen for THC—the active component in cannabis—rather than nonpsychoactive cannabis metabolites.

Nonetheless, California law is quite strict concerning whether workers can be required to submit to drug testing in the first place.

The law regarding drug testing differentiates between job applicants and employees.

Drug Testing Job Applicants in California

With respect to job applicants, employers may require them to pass a drug test as a condition of employment, as long as the test is scientifically valid and does not screen for non-psychoactive cannabis metabolites.

Drug Testing Employees in California

When it comes to employees, employers generally may not require them to take a drug test unless the employers have a reasonable suspicion, based on objective facts, that the employee is using drugs or impaired at work.

Examples of objective facts that create a reasonable suspicion may include glassy eyes, the odor of marijuana, or the employee's involvement in a workplace accident.

Only when an employer has a reasonable suspicion that an employee is using drugs is a drug test justified, and then only a drug test that shows active impairment or THC can be the basis for an adverse employment action, such as firing.

Contact an Employment Lawyer

If you believe you've been discriminated against in hiring, firing, or for any other reason due to your marijuana use outside of the workplace, contact an employment lawyer.

An experienced employment attorney can help you determine whether your employer or prospective employer violated FEHA and what remedies you might have.

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