Can CA employees be fired after drug test comes back positive for marijuana? We explain new law

LOS ANGELES (KABC) -- There are a number of California laws on the books when it comes to marijuana, including one meant to stop employers from punishing workers who use cannabis when they are not on the job.

In September, Gov. Gavin Newsom signed Assembly Bill 2188 (AB-2188), which addresses how an employer can test employees or potential employees for cannabis. It applies only to marijuana and not to any other drugs.

Eyewitness News spoke with employment attorney Angela Reddock-Wright, who broke down the details of AB-2188.

ABC7: What exactly does AB-2188 do?

Reddock-Wright: "It basically prohibits employers from discriminating against employees for their off-duty use of marijuana, whether it be for medicinal reasons or recreational reasons, and it also precludes and prevents employers from firing or terminating or disciplining anyone if in a drug test, they find that the employee has what we call 'non-psychoactive' traces of marijuana or THC in their blood system or in their urine system."

ABC7: Are California employers still allowed to drug test for marijuana and can an employee be fired for failing a drug test that comes back positive for THC?

Reddock-Wright:"California employers can still do what we call 'pre-testing' for marijuana and for other drugs, however, if in that pre-test, it comes back with what we call 'non-psychoactive' traces of THC or other substances, that's not enough to not hire someone.

You have to find psychoactive traces or traces that actually cause an impairment to the person's ability to do the job. During employment, we can have drug testing if the employer feels that the employee is somehow impaired in doing their job, possibly because of marijuana or other drug use, but even in doing that, during employment testing, just merely finding traces of THC in the system is not enough to take action. It has to be at a level in which it is actually impairing the employee's ability to do his or her job."

ABC7: Are the rules any different for medical marijuana versus recreational marijuana?

Reddock-Wright: "No. Both medical and recreational use is now protected in the workplace so really, it boils down to whether an employee is actually impaired in doing their job as a result of a marijuana or other drug use. What employers can do, they can still prevent having or possessing marijuana in the workplace or other drug substances in the workplace.

They can prohibit using it while you're at work and they can still declare that they would like a drug-free working environment, but they can't control what you're doing outside of work unless it comes into work and causes some impairment or ability to do your job.

When it comes to medical marijuana use, there's a possibility in that instance that an individual's rights under the Americans with Disabilities Act would kick in where if an employer tried to take action for someone engaged in medical use by saying that the employer is violating their rights under ADA. That they have a medical condition or disability which requires this, and then of course that requires a whole other process under the law."

AB-2188 goes into effect on January 1, 2024.