Your Rights Under AB 2188
Your weekend just got a lot safer!
You legally used cannabis on Saturday night. By Monday morning, you’re facing termination because of a positive drug test. Until recently, California employers could fire you for exactly this scenario even though you were completely sober at work.
That changed on January 1, 2024.
Assembly Bill 2188 (AB 2188) fundamentally transformed employment law in California. For the first time, most California workers have legal protection against discrimination based on their off-duty marijuana use. But here’s what many employees don’t realize: the type of drug test your employer uses matters enormously.
This guide explains your rights under California Government Code §12954, reveals which tests can and cannot be used against you, and shows you exactly what to do if you’ve been wrongfully terminated.
What AB 2188 actually protects (and what it doesn’t)
California Government Code § 12954 makes it unlawful for employers to discriminate against employees or job applicants based on two specific things:
- Your use of cannabis off the job and away from the workplace
- An employer-required drug screening test that finds nonpsychoactive cannabis metabolites in your hair, blood, urine, or other bodily fluids
The California Legislature was explicit about why this law exists. In passing AB 2188, lawmakers stated: “The presence of non-psychoactive cannabis metabolites in the body does not indicate that an individual is impaired, only that they smoked or consumed cannabis in the last few weeks.”
This distinction is critical. The law recognizes that traditional drug tests, particularly urine tests, don’t measure whether you’re high at work. They only prove you consumed cannabis at some point in the recent past.
What employers can still do
Let’s be absolutely clear about what AB 2188 does “not” permit:
-You “cannot” possess cannabis at work
-You “cannot” use cannabis on the job
-You “cannot” be impaired by cannabis during work hours
-Employers “can” maintain drug-free workplace policies
-Employers “can” use tests that detect “psychoactive THC” (recent use/impairment)
The law draws a bright line between your private life and your professional responsibilities.
The critical testing distinction every California employee must understand
This is where wrongful termination cases are won or lost. The legality of your employer’s action often depends entirely on which test they used and what that test actually measures.
Urine testing: Generally illegal as sole basis for termination
Traditional urine drug tests detect THC-COOH a nonpsychoactive metabolite. This metabolite can remain in your system for weeks after consumption, sometimes longer for frequent users.
Here’s the problem: THC-COOH has zero correlation to workplace impairment. If you used cannabis two weeks ago, you’d still test positive even though you haven’t been impaired in fourteen days.
Under AB 2188, employers cannot terminate you based solely on a urine test showing nonpsychoactive cannabis metabolites. This is the exact type of discrimination the law was designed to prevent.
Oral fluid (saliva) testing: Generally permissible
Oral fluid tests measure parent THC (Δ9-THC) the actual psychoactive compound that causes impairment. This test has a much shorter detection window, typically only hours after use, not weeks.
Because oral fluid testing can corroborate recent use and potential impairment, employers may still rely on these results. The California Legislature specifically noted that “employers now have access to multiple types of tests that do not rely on the presence of nonpsychoactive cannabis metabolites.” However, and equally critical, your employer must still demonstrate that you were impaired at work or may be guilty for discriminating against you for off duty marijuana use.
The bottom line
If your employer fired you based on a urine test showing only nonpsychoactive metabolites or an oral fluid that is positive without any evidence of on-the-job impairment, you may have a strong wrongful termination claim.
Who is protected under AB 2188?
The law applies to most California workers, but understanding the exemptions is crucial for evaluating your case.
Employees covered by AB 2188
You’re likely protected if:
-Your employer has “five or more employees”
-Your position doesn’t fall under federal drug testing requirements
-You don’t work in an exempt industry
-You used cannabis “off the job and away from the workplace”
Exemptions: Workers not protected
“Building and construction trades employees” are explicitly exempt under Government Code § 12954(c). This exemption reflects the safety-sensitive nature of construction work.
“Federal background investigation or security clearance positions” remain subject to federal requirements under § 12954(f). If your job requires clearance under Department of Defense regulations (32 CFR Part 117) or equivalent, AB 2188 won’t protect you.
“Small employers” with four or fewer employees are not covered by this law.
“DOT-regulated positions” are where federal preemption becomes critical.
Federal exceptions: DOT-regulated positions and preemption
California Government Code § 12954(e) explicitly states the law “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances” as a condition of employment, receiving federal funding, or entering into federal contracts.
Who falls under DOT drug testing requirements?
Under 49 CFR Part 40, safety-sensitive transportation employees remain subject to mandatory marijuana testing regardless of state law. These include:
– CDL holders driving commercial motor vehicles
– Aviation workers under FAA regulations
– Railroad workers under FRA regulations
– Transit workers under FTA regulations
– Pipeline workers under PHMSA regulations
– Maritime workers under Coast Guard regulations
Marijuana remains a tested substance under federal law, and the DOT has been clear: even as states legalize cannabis, federal safety-sensitive rules continue to apply without exception.
What this means for DOT employees
If you hold a CDL or work in another DOT-regulated position, you can still be terminated for a positive marijuana test even for off-duty use. Federal law preempts California’s AB 2188 protections for these safety-sensitive roles.
How to file a wrongful termination claim
If you believe you were fired in violation of AB 2188, California law provides a clear path to justice.
Step 1: File with the California Civil Rights Department (CRD)
Because AB 2188 amended the Fair Employment and Housing Act (FEHA), you must file an administrative complaint with the CRD before pursuing a lawsuit.
You have three years from the date of the discriminatory act to file your complaint.
You can file in three ways:
Online through the California Civil Rights System (CCRS)
By mail using a printable intake form
By phone at 800-884-1684 (toll-free) or 800-700-2320 (TTY)
Step 2: Investigation or Right-to-Sue letter
After filing, you have two options:
- Allow CRD to investigate your complaint
- Request an immediate Right-to-Sue letter to file your own lawsuit in civil court
Step 3: Civil litigation
Once you receive a Right-to-Sue letter, you have one year to file a lawsuit in California civil court.
Remedies available for wrongful termination
Successful claims under AB 2188 can result in significant compensation and other relief:
-Back pay for wages lost from termination to resolution
-Front pay for future lost earnings when reinstatement isn’t feasible
-Reinstatement to your former position
-Compensatory damages for emotional distress and other harm
-Punitive damages in cases of particularly egregious conduct
-Attorney’s fees and costs
-Policy changes requiring the employer to revise discriminatory practices
Frequently asked questions
Can my employer still drug test me in California?
Yes. AB 2188 does not prohibit drug testing. Employers can still test employees and applicants. However, they cannot use nonpsychoactive metabolite results as the sole basis for adverse employment action against most workers.
I work in construction. Am I protected?
No. Building and construction trades employees are explicitly exempt from AB 2188’s protections. Your employer can still test for and take action based on nonpsychoactive cannabis metabolites.
Can I be fired for being high at work?
Absolutely yes. AB 2188 does not protect impairment on the job. Employers can terminate employees who possess, use, or are impaired by cannabis during work hours. The law protects only “off-duty use away from the workplace”.
What if my employer used a urine test and fired me?
If your employer terminated you solely based on a urine test showing nonpsychoactive cannabis metabolites or a positive saliva test without evidence of on-the-job impairment you may have a strong wrongful termination claim. Consult with an employment attorney to evaluate your specific situation.
Does AB 2188 apply to job applicants?
Yes. The law protects both current employees and job applicants from discrimination based on off-duty cannabis use or nonpsychoactive metabolite test results. Additionally, Senate Bill 700 (also effective January 1, 2024) prohibits employers from asking job applicants about their prior cannabis use.
What’s the deadline to file a complaint?
You have three years from the date of the discriminatory act to file with the CRD. After receiving a Right-to-Sue letter, you have one year to file a civil lawsuit.
Key takeaways
- AB 2188 protects most California workers from discrimination based on off-duty cannabis use, effective January 1, 2024
- The type of test matters enormously urine tests showing only nonpsychoactive metabolites generally cannot be used against you; oral fluid tests detecting active THC may still support adverse action but there still needs to be evidence of impairment while you were at work
- You can still be fired for on-the-job impairment, the law protects off-duty use, not workplace intoxication
- Federal employees and DOT-regulated workers remain subject to federal drug testing requirements regardless of California law
- Construction workers are exempt from AB 2188’s protections
- You have three years to file a CRD complaint, but earlier action preserves evidence and strengthens your case
- Remedies include back pay, front pay, reinstatement, compensatory and punitive damages, and attorney’s fees
Take action to protect your rights
If you’ve been fired, disciplined, or denied employment because of off-duty cannabis use, you may have a valid wrongful termination claim under California law.
Document everything: Save copies of your drug test results, termination letter, employee handbook, and any communications with your employer about the decision. Note the type of test administered and what it specifically detected.
Act promptly: While you have three years to file with the CRD, evidence deteriorates and witnesses’ memories fade. Consulting with an employment attorney early gives you the strongest position.
Disclaimer
This article provides general information about California employment law and should not be considered legal advice. Laws and their interpretations may change, and individual circumstances vary significantly. Consult with a qualified employment attorney about your specific 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.
