Federal & State Regulations | Marijuana - California | J. J. Keller® Compliance Network

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Summary of differences between federal and state regulations

Marijuana

California's law includes limitations on testing for marijuana, unless an exemption applies, but allows employers to prohibit use in the workplace.

State law allows a person over age 21 to grow, purchase, possess, and use a limited amount of marijuana. Smoking in a public place is prohibited. An employer can maintain a drug free workplace and is not required to permit or accommodate the use, consumption, possession, transfer, display, sale, or growth of marijuana in the workplace.

Medical marijuana patients and primary caregivers are not subject to criminal prosecution or sanction. Qualified patients may request an identification card from a county health department. Employers are not required to accommodate medical use of marijuana on the property of any place of employment or during the hours of employment.

As of January 1, 2024, employers may not discriminate against employees based on off-duty use of medical or recreational marijuana. Employers may not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize a person, based on:

Use of cannabis off the job and away from the workplace.
A drug test that has found the person to have nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

The law does not apply to:

An employee in the building and construction trades
Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense, or equivalent regulations applying to other agencies

In addition, the law does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances. This includes laws and regulations requiring applicants or employees to be tested, or relating to the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits or entering into a federal contract.

Testing methods

An employer may use a pre-employment drug test conducted through methods that do not screen for nonpsychoactive cannabis metabolites. However, the law does not define “nonpsychoactive cannabis metabolites.” It refers to “multiple types of tests” that do not rely on the presence of nonpsychoactive cannabis metabolites,” but does not specify testing methods.

The law notes that impairment tests, which measure an individual employee against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol (THC) in an individual’s bodily fluids (rather than THC metabolites) do not rely on the presence of nonpsychoactive cannabis metabolites. These types of tests are not yet readily available, however.

Drug testing limitations noted in the law

The law notes that the intent of a drug test is to identify employees who may be impaired. “While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job,” it states.

After a person consumes or uses cannabis, the drug is metabolized. The THC in the cannabis (the chemical in cannabis which causes the high feeling) is stored in the body as a cannabis metabolite. The presence of this metabolite in the body indicates that cannabis has been used sometime in the past few weeks, but does not indicate that an individual is impaired by cannabis.

When deciding whether to test for marijuana, employers should determine whether any of the law's exceptions apply. If an exception does not apply, an employee or applicant should not be tested for marijuana.

Marijuana: Van and small bus drivers

Under the California Public Utilities Code, drivers transporting 15 or fewer passengers are subject to pre-employment, random, and post-accident tests. Drivers shall test negative for each of the controlled substances specified in Part 40 of Title 49 of the Code of Federal Regulations. This panel includes marijuana.