Employers in the U.S. cannot fire someone for partaking in legal drug or alcohol consumption, so long as it is done off hours and doesn’t affect their performance on the job. Because it remains a federally illegal substance, the same liberty is not extended to cannabis use.
Employees who test positive for THC in a work-mandated drug test are often disciplined by their employers and sometimes fired. Job applicants who admit to having used cannabis or test positive for it may not get hired as a result.
That is no longer the case in California. As of Jan. 1, Assembly Bill 2188 established protections for workers who use cannabis from being discriminated against by current or prospective employers. As long as someone does not display evidence of active THC in their system on the job, this law protects workers from being fired for off-the-job cannabis use and prevents employers from holding past cannabis use against a potential job candidate as well. Users can sue for damages if they are discriminated against.
“Testing or threatening to test bodily fluids for cannabis metabolites has been the most common way that employers harass and discriminate against employees who lawfully use cannabis in the privacy of their own homes,” Dale Gieringer, director for the California chapter of the National Organization for the Reform of Marijuana Laws (NORML), wrote in a statement on the organization’s website. “These new laws will end that practice without impacting workplace safety.”
In California, employers will still be able to test for active THC in a person’s system. There are also impairment tests that can be used to judge a person’s sobriety on the job.
Assembly Bill 2188 makes it so employers can no longer “discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.”
While many employers in Colorado don’t use drug tests to discriminate against cannabis users, it is still within their legal right to do so. There are no legal protections for workers in Colorado similar to the new laws in California.
One was introduced by Rep. Edie Hooton in 2022. The “Prohibit Employer Adverse Action Marijuana Use” bill would have allowed employers to impose restrictions on employee use of medical or retail marijuana, but it would have legally prohibited them from taking any kind of adverse action against their employees or job applicants who used recreational or medical cannabis off the premises and during non-work hours.
Notably, this bill would have also allowed for medical marijuana patients to use cannabis on the job. Hooton’s bill failed in committee.
No new legislation has been introduced this session. Meaning for now, in the Centennial State, employers can still fire or discipline their employees for using cannabis at home, off hours away from the job.