It is common practice for employers to require drug testing as a condition of hiring and continuing employment. It is actually more uncommon for an employment application to fail to make note of the employer’s intention to conduct a drug test before issuing an offer of employment.
Drug testing is carried out by some government employers and frequently occurs in the private sector as well. Because of its popularity, employees should take it seriously when the employer is warning that drug testing will be a condition of hiring.
According to California’s state Constitution, the right to privacy extends to government as well as private industry employees. California courts have determined that an employer may legally drug test their employees. This is true so long as no one is singled-out or discriminated against, such as drug testing an employee simply because of their race. What this means is that many workplace drug testing policies must apply to all employees, instead of random testing.
Should the legality of a drug test be questioned, a judge will use a specific balancing test of an employer’s reason for testing versus an employee’s right to privacy. Although California has a “compassionate use” law regarding legal medicinal marijuana use, an employer can still refuse to hire someone who has tested positive for marijuana.
To summarize, California employers are generally permitted to require their employees to undergo drug testing as a condition of employment. However, in order for the drug test procedure to be considered legal, employers must test all applicants for a specific position. Additionally, they may not single out a particular applicant due to their race, nationality, origin, disability, or other discriminatory reason. Randomly drug testing employees in California whose jobs do not impact public safety is generally not considered to be legal.
When are Drug Tests Carried Out Legally in California?
Drug testing is allowed in the private sector in several situations. The following are a few examples:
- Pre Employment: Drug testing job applicants is the most common type of drug testing used by private employers. Courts have upheld pre-employment testing by reasoning that employers have a right to seek qualified applicants that are drug free. Additionally, job applicants can choose not to apply for jobs that require testing if they do not wish to be tested;
- Reasonable Suspicion: When employers reasonably suspect an employee of drug use, testing is considered to be legal. What constitutes reasonable suspicion varies depending on the court; in general, some common examples include observing drug use or physical symptoms of use, erratic behavior, or a report of use from a reliable source;
- Random Testing: Random drug testing is often considered to be a way of violating employee privacy rights. Because of this, some states have statutes preventing random testing. However, many courts have upheld random testing, especially in safety-sensitive workplaces. This also applies to situations in which there is no direct supervision of employees. The drug testing must be random, and not directed at specific employees for alternative reasons. This would include discriminatory reasons, such as an employee’s race or religious beliefs; and/or
- Post Accident: Post accident drug testing is generally associated with workers compensation claims. A positive drug test following an accident often creates a presumption that the accident was caused by intoxication. This presumption must be rebutted by the employee before they can claim compensation benefits.
In California specifically, the following types of employment drug testing are considered to be legal:
- Pre Employment Testing: An employer can require the job applicant to submit to a drug test prior to being placed on the employer’s payroll;
- Random Testing: An employee may only legally be randomly drug tested IF they work in a position involving public safety; and
- Reasonable Suspicion: If an employer has a reasonable suspicion of an employee using or abusing drugs or alcohol, it is likely that a court would uphold the validity and reason of the administered drug test.
Are There Specific Types of Drugs that California Employers Typically Test For?
Each specific circumstance will determine which drugs may be tested for. Most employers use urinalysis to test for five common illicit drugs:
- Amphetamines, such as speed, meth, crank, ecstasy;
- THC, such as hash, cannabinoids, cannabis;
- Cocaine or crack;
- Opiates such as heroin, morphine, opium, codeine; and/or
- Phencyclidine which is PCP, or angel dust.
Many private employers place no limit on the number of drugs they can test. Some employers may also test for additional drugs, such as:
- Hallucinogens; and
Some examples of the types of methods that an employer may use to drug test a person include:
- Reviewing a tube of their saliva or spit;
- Having them provide a urine sample that tests for various drugs;
- Using a sample of the person’s hair; and/or
- Undergoing a medical test that examines the individual’s nails.
As previously mentioned, California has a compassionate use law regarding medical marijuana, or cannabis. When the legality of a drug test is called into question, a judge will administer the aforementioned balance test. The judge will also consider other factors, such as:
- Whether the drug test was used as a pre-employment screening before hiring an employee; and/or
- Whether the drug test was conducted randomly, or was done under reasonable suspicion of drug abuse.
Although California has legalized the use of both recreational and medicinal marijuana, an employer still maintains the right to refuse to hire someone who has tested positive for the drug.
Are There Consequences If I Fail a Drug Test in California?
Each state or municipality has its own rules regarding drug testing in the workplace and the consequences for failing a drug test. Generally speaking, if you fail a pre-employment drug test, the company may legally refuse to hire you. And, if you fail a drug test while employed, your employer may legally terminate your employment or prevent you from being promoted.
Your state may also deny you unemployment benefits, workers’ compensation benefits, or disability benefits for failing a drug test. However, not every jurisdiction or employer has a “zero tolerance” policy, and the consequence of failing a drug test often depends on each specific employer.
The same is true for California. Failing a drug test in California means that an employer can legally deny you employment, or terminate your employment depending on the conditions of your hiring. Once you have been hired, the employer may choose to continue your employment but decline to promote you until you pass the next series of drug tests.
In 2008, the California Supreme Court held that employers may fire employees for marijuana use, even when used for medical reasons. This is because marijuana is still illegal under federal law.
Do I Have Any Defenses to Testing Positive for Drugs Under California Laws?
Most employers who conduct drug tests will be testing for illegal controlled substances. One of the most commonly recurring examples would be cannabis. It is a commonly tested drug; however, as many states now allow the legal use of marijuana for recreational and medicinal use, the employer may choose to allow employment even when the drug test comes back positive. In California, it is up to each individual employer to use their own discretion when determining if a cannabis-positive drug test would eliminate an applicant or employee.
A less commonly utilized defense is lab error. Although rare, it can happen. Whether there has been employee error in running the test, or a “false positive” result, you may be entitled to challenge the test.
While drug testing is allowed in many situations, and is actually required by the federal government under the Drug-Free Workplace Act in some circumstances, employees maintain rights and expectations of privacy. Employee Rights when undergoing drug testing are:
- Employers must have a legitimate reason to test;
- Employees generally must be given adequate notice of the test;
- Employers cannot share information about drug tests with third parties;
- The drug test must be conducted by an approved laboratory under approved conditions; and
- Depending on the court, the employee may have the right not to be observed while tested.
If any of these rights were violated in the course of drug testing, that may serve as a defense to testing positive for drugs under California laws.
Should I Consult a California Attorney About Drug Testing?
While a successful drug test as a condition of employment is fairly common and straightforward, drug testing as part of continuing employment can be somewhat more complicated. If you are confused regarding your rights as an employee, or you suspect your rights have been violated, you should consult with a local attorney. A local attorney will be most knowledgeable in terms of what your state’s laws are regarding the matter.
If you are a California employee adversely affected by workplace drug testing, or an employer concerned with drug testing issues, an experienced California employment lawyer can offer legal advice while helping you take the necessary steps to protect yourself. An attorney can also represent you in court should any issues arise, and will provide you with any legal defenses available to you based on the circumstances of your specific case.