AB 2188 and SB 700: California’s Off-Duty Cannabis Protection (Gov. Code § 12954)
Since January 1, 2024, the FEHA has made it unlawful to discriminate against a worker for using cannabis off the job, or on the strength of a drug test that found only nonpsychoactive cannabis metabolites — and unlawful to ask an applicant about prior cannabis use at all.
California employers may still forbid cannabis at work, still test for current impairment, and still refuse to hire someone who fails a screen designed to detect active THC. What they may no longer do is treat off-duty, off-site use as misconduct, rely on a metabolite test that only shows past use, or ask an applicant whether they have used cannabis before.
Read the official text at California Legislative Information →
What it does
Government Code section 12954 is the Fair Employment and Housing Act’s cannabis provision. It does two distinct things. First, it makes off-duty cannabis use a protected characteristic in substance if not in name: subdivision (a)(1) declares it 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 on “[t]he person’s use of cannabis off the job and away from the workplace.” Second, it targets the test itself, making it equally unlawful to act on “[a]n employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
The second half of that pairing is the operative engineering. Standard urine and hair panels do not measure impairment; they detect metabolites that can persist for days or weeks after use. By making a positive metabolite result an unlawful basis for an employment decision, the Legislature removed the evidentiary mechanism that made off-duty use actionable in the first place — while expressly preserving the employer’s ability to use “scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
The section also closes the intake channel. Subdivision (b) makes it unlawful “for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.” That prohibition was added by SB 700 in 2023 and became operative with the rest of the section on January 1, 2024. Subdivision (c) extends the same treatment to prior-cannabis-use information drawn from a person’s criminal history, unless the employer is permitted to consider or inquire about that information under Government Code section 12952 or other state or federal law.
Two bills built the section, and they are routinely conflated. AB 2188 (Quirk and Jones-Sawyer) added section 12954 to the Government Code and was chaptered on September 18, 2022 as chapter 392 of the Statutes of 2022 — but with a delayed operative date of January 1, 2024, giving employers a full year to revise testing protocols. SB 700 amended the section in 2023 (Stats. 2023, ch. 408) to add the prohibition on asking applicants about prior cannabis use, effective January 1, 2024.
Key provisions
Discrimination in “hiring, termination, or any term or condition of employment, or otherwise penalizing a person” is unlawful when based on “[t]he person’s use of cannabis off the job and away from the workplace.” The subparagraph carries its own carve-out: it “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
It is separately unlawful to base an employment decision on “[a]n employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.” Note the breadth of the specimen list, and note that this limb is independent of subparagraph (A): the employer need not have known when or where the person used.
”This subdivision does not apply to an employee in the building and construction trades.” The exclusion is written to subdivision (a), so on its face it does not reach subdivision (b)’s bar on asking applicants about prior use — a distinction worth checking before advising a construction-industry employer.
Except as specified in subdivision (c), it is unlawful “for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.” This reaches applications, questionnaires and interview questions alike, and it is violated by the request — no adverse decision is required.
Information about prior cannabis use obtained from a person’s criminal history is subject to subdivisions (a) and (b) “unless the employer is permitted to consider or inquire about that information under Section 12952 or other state or federal law.” Section 12952 is the Fair Chance Act, so the two statutes have to be read together in any conviction-history screening.
The section “does not permit an employee to possess, to be impaired by, or to use, cannabis on the job,” and does not affect an employer’s rights or obligations “to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code,” or any other rights or obligations under state or federal law or regulation.
Subdivision (e) preserves state or federal laws requiring applicants or employees to be tested for controlled substances — including the manner of testing — as a condition of employment, of receiving federal funding or federal licensing-related benefits, or of entering into a federal contract. Subdivision (f) exempts positions requiring a federal background investigation or security clearance under part 117 of title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.
”This section shall become operative on January 1, 2024.” Conduct before that date is governed by prior law — which, for off-duty medical cannabis use, means Ross v. RagingWire Telecommunications, Inc.
The FEHA does not require employers to accommodate the use of illegal drugs.— Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926 — the rule section 12954 was written to displace
How it applies
Section 12954 is the Legislature’s answer to Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920. There, an employee fired after a positive marijuana test argued that the FEHA and the Compassionate Use Act together required his employer to accommodate physician-recommended medical use at home. The court disagreed, holding that “[t]he FEHA does not require employers to accommodate the use of illegal drugs” (id. at p. 926) and that “[n]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees” (ibid.). Section 12954 does not overrule Ross on its own terms; it changes the statutory premise Ross was construing. An employer today cannot rely on a metabolite result at all, so the accommodation question Ross answered rarely arises.
The claim is a FEHA claim. Section 12954 sits inside the FEHA, which means the ordinary FEHA machinery applies: exhaustion through the Civil Rights Department and a right-to-sue letter before filing (Gov. Code § 12960), the FEHA statute of limitations, and the FEHA remedial scheme including fees under section 12965, subdivision (c)(6). Counsel should plead the section 12954 violation as a FEHA cause of action rather than as a standalone statutory claim, and should confirm that the administrative charge describes the cannabis-based conduct.
Identify which limb is violated. The two prohibitions in subdivision (a)(1) are independent and prove differently. Subparagraph (A) requires evidence that the decision was based on off-duty, off-site use — typically an admission, a social media post, a co-worker report, or an employer statement. Subparagraph (B) requires only that the employer required a drug screen, that the screen found nonpsychoactive metabolites, and that the employer acted on it; the timing and location of use drop out of the case entirely. In most metabolite-test terminations the (B) theory is both simpler and stronger.
Test the test. The statute’s safe harbor is narrow. It protects “scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites” — three separate requirements. Ask what panel was run, what analytes it reported, whether the laboratory’s method distinguishes active THC from inactive metabolites, and whether the screen was preemployment (the safe harbor is written in preemployment terms). A conventional urine or hair panel reported as “THC positive” is very unlikely to satisfy it.
Read the carve-outs narrowly and check them early. The building-and-construction-trades exclusion is written to subdivision (a) only. Subdivisions (e) and (f) exempt federally mandated testing and clearance-related positions, and those exemptions turn on facts — whether the position is genuinely subject to a federal testing mandate or a Department of Defense background investigation — not on the employer’s characterization. Where an employer invokes a federal mandate, the specific federal regulation should be identified and matched to the plaintiff’s actual position.
The intake ban has independent value. Subdivision (b) is violated by the request itself. An application form or interview script that asks about prior cannabis use is unlawful on its face regardless of whether the applicant was hired, which makes it useful both as a standalone claim and as evidence of the employer’s decisional criteria in a subdivision (a) case. Preserve the application materials early.
What has not changed. Employers may still prohibit possession, use and impairment at work; may still maintain a drug- and alcohol-free workplace; may still discipline for on-duty impairment; and may still comply with federal testing mandates. Section 12954 protects the employee’s off-duty time and the integrity of the testing method — not a right to use cannabis at work.
AB 2188 (Quirk, Jones-Sawyer) added section 12954 and was chaptered September 18, 2022 as chapter 392 of the Statutes of 2022, with an operative date deferred to January 1, 2024. SB 700 amended the section in 2023 (Stats. 2023, ch. 408) to add subdivision (b)’s bar on asking applicants about prior cannabis use, effective January 1, 2024. Because the operative date and the amendment’s effective date coincide, the section has been in force in its current form since the day it took effect — there is no window in which subdivision (a) applied without subdivision (b).
Related authorities
Practitioner summary, current as of September 2026 — not the statute itself. Statutes are amended; confirm the operative language at the official source before relying.