California has enacted legislation broadly protecting employees from discrimination for the use of marijuana, which has been legal in the state since 2016. Governor Newsom signed Assembly Bill 1288 into law. It generally prohibits employers from discriminating “against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person” for using marijuana off-the-job and away from the workplace. It also prohibits relying on certain drug testing. The new law takes effect on January 1, 2024.

Previous Laws and Decisions on Marijuana and Employment

Through Proposition 215 in 1996, California legalized marijuana for medical reasons in certain instances. That initiative did not contain any provision requiring employer accommodation or prohibiting discrimination. In Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), the California Supreme Court held that an employer lawfully could refuse to employ an individual who failed a drug test, even if the positive test resulted from medical use authorized under Proposition 215. The court further held that employers are not required to permit or accommodate marijuana use as a reasonable accommodation under California’s Fair Employment and Housing Act (FEHA).

In 2016, California voters legalized marijuana through Proposition 64. While making dramatic changes in drug laws, the initiative did not change the legal landscape in employment law or drug testing. It also did not impact the ...

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