Introduction: A Landmark Shift in California Cannabis Employment Law
California Government Code Section 12954 represents one of the most significant changes to cannabis employment law in the United States. Enacted through Assembly Bill 2188 (AB 2188) and subsequently amended by Senate Bill 700 (SB 700), this landmark legislation fundamentally transformed how California employers may consider cannabis use in employment decisions.
Effective January 1, 2024, Section 12954 provides unprecedented employment protections for California workers who use cannabis legally off the job and away from the workplace.
Section-by-Section Breakdown
Section 12954(a)(1)(A) Off-Duty Use Protection
“It is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon . . . The person’s use of cannabis off the job and away from the workplace.”
The Key Exception for Pre-Employment Screening:
“This paragraph does not prohibit an employer from discriminating in hiring . . . based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. “
Section 12954(a)(1)(B) Metabolite Testing Prohibition
“An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
This is the core protection of Section 12954.
Section 12954(a)(2) Construction Trades Exemption
“This subdivision does not apply to an employee in the building and construction trades.”
Section 12954(b) Prohibition on Inquiring About Prior Cannabis Use (Added by SB 700)
“It is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.”
Section 12954(d) Workplace Impairment Not Protected
“This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job , or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace . . . .”
Section 12954(e) Federal Preemption Clause
“This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances . . . .”
Section 12954(f) Federal Security Clearance Exemption
“This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance . . . .”
Federal Exception: DOT-Regulated Positions
Under 49 CFR Part 40, mandatory drug testing applies to safety-sensitive employees regulated by:
-FMCSA CDL holders, commercial truck and bus drivers
-FAA Pilots, flight attendants, aircraft maintenance, air traffic controllers
-FRA Train engineers, conductors, dispatchers
– FTA Bus operators, rail operators, mechanics
– PHMSA Pipeline emergency response personnel
-USCG Maritime workers
If you hold a DOT-regulated position, Section 12954 does NOT protect you from adverse action based on cannabis use.
Available Remedies Under FEHA
-Back pay – Lost wages from termination or failure to hire
-Front pay – Future lost wages when reinstatement isn’t appropriate
-Emotional distress damages
-Punitive damages – For malicious, fraudulent, or oppressive conduct
-Attorney’s fees and costs
-Reinstatement to former position
-Declaratory relief
-Injunctive relief
Filing a CRD Complaint
You have three years from the date of discrimination to file with the California Civil Rights Department:
– Online: California Civil Rights System (CCRS)
– Mail: Using the printable intake form
– Phone: 800-884-1684 (Toll-Free)
Disclaimer: This article provides general information and should not be considered legal advice. Consult with a qualified California employment attorney about your particular situation before taking legal action.
If you have been terminated or penalized by your employer for off-duty marijuana use, please call our marijuana assistance hotline at (949) 620-0718.
