California Drug Testing Laws Pre Employment

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 What is Drug Testing?

Generally speaking, drug testing refers to when an individual is subjected to a particular medical examination that is meant to detect the presence of drugs and other illegal substances.

Drug testing may be court ordered, such as during a child custody dispute, or it can be required by a school or employer to ensure the safety of certain individuals (e.g., persons playing collegiate sports or operating common modes of transportation like airplanes or buses).

Some examples of the types of methods that a court and/or other entity may use to drug test a person include:

  • Reviewing a tube of their saliva or spit;
  • Having them give a urine sample that tests for various drugs (i.e., a panel);
  • Using a sample of the person’s hair; and/or
  • Undergoing a medical test that examines the individual’s nails.

If you believe you have been subjected to an unlawful drug test, you should contact a local attorney as soon as possible for further legal guidance. An attorney can help determine whether your drug test was illegal and can discuss the potential options you have for legal recourse.

Is Drug Testing Legal in California?

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 as valid, employers must test all applicants for a specific position. Also, they may not single out a particular applicant due to their race, nationality, origin, disability, or other discriminatory reason.

On the other hand, randomly drug testing employees in California whose jobs do not impact public safety is usually not considered to be legal.

When a drug test is called into question, a judge will determine whether or not the drug test was legal by using what is known as a “balance test.” Basically, the judge will weigh the employer’s reasons for requiring the drug test against an employee’s right to privacy.

The judge will also consider other factors, such as whether the drug test was used as a pre-employment screening before hiring an employee, 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 has a right to refuse to hire someone who has tested positive for the drug.

With Recreational Marijuana Becoming Legal in California, How Has That Affected Medical Marijuana Laws?

It is no surprise that the main effect of legalizing recreational marijuana in California has loosened the restrictions initially required to uphold medical marijuana laws.

For example, medicinal marijuana users no longer need a medical card to obtain marijuana for medicinal purposes. A valid medical marijuana card was originally required if a person was prescribed marijuana to treat a specific medical condition. Without being a registered cardholder, an individual could not purchase medicinal marijuana.

Now, however, both recreational and medical users of marijuana are legally allowed to purchase the drug with or without a medical card.

Recreational marijuana laws have also made it much more difficult to implement protections for medical marijuana users in the workplace. Legislators in California are still grappling with how to handle employee protections and employer rights when it comes to marijuana possession and use in a work environment.

Though use and possession in the workplace will most likely be banned for a long time, off-duty use and possession are the primary issues that are causing California legislators to rethink existing laws on the matter.

Can You Still Get a Job with a Medical Card?

Simply holding a medical marijuana card in California will not automatically get a worker fired from their job. However, as discussed above, employers are allowed to terminate employees who test positive for marijuana use.

Workers should also still be able to secure a job with a medical card. Depending on the facts surrounding a particular matter, an employer may be held liable for employment discrimination if the worker holds a medical card for a reason listed under the American Disabilities Act (“ADA”). The employer can face legal repercussions for discriminating against persons who have a disability.

Can Employers See If You Have a Medical Card?

It is generally illegal for an employer to check if an employee holds a medical marijuana card. However, as discussed above, employers are still permitted to drug test their employees under certain circumstances.

Both Health Insurance Portability and Accountability Act (HIPAA) laws and California state privacy laws protect the personal contact information of individuals who register for medical marijuana cards. Legally speaking, employers do not have access to the California ID card system, which contains patients’ information.

In addition, it will be difficult for employers to check if their workers have visited a marijuana dispensary. Privacy laws and marijuana legislation in California have attempted to crack down on selling personal information to third parties.

In other words, the only way an employer would be able to check a marijuana dispensary log is by paying for the information. However, thanks to recently passed marijuana laws, dispensaries are prohibited from selling customers’ personal information.

Can Employees Who Use Medical Marijuana in California be Terminated For Using Medical Marijuana?

An employee who uses and possesses medical marijuana can still be fired if they test positive for the drug. This is true even in cases where the employee is a valid medical marijuana cardholder. However, an employee may be protected under California’s Compassionate Use Act.

While an employer still has a right to maintain a drug free workplace, employees who fall under this Act may have certain protections, such as to be free from employment discrimination based on a disability or other discriminatory class, and to receive reasonable accommodations in the workplace.

Again, an employer is legally allowed to fire, refuse to hire, prohibit smoking on the premises, and take any other measures to maintain a drug free environment for other workers and to keep all persons safe at their job.

What Can I Do if I’m Terminated for Medical Marijuana Use?

Due to newly enacted recreational marijuana laws in California state, the laws regarding termination and marijuana use are still developing. This can make it difficult for persons to determine what they must do in order to file a claim against their employer for wrongful termination for using medical marijuana without the help of an attorney.

Thus, if you have been terminated from your job as a result of medical marijuana use or possession, then you should contact a California workplace lawyer for further legal advice.

A California employment lawyer who has experience handling wrongful termination lawsuits involving medical marijuana use and/or possession, will already be familiar with current state medical marijuana laws and how they apply in the workplace.

Additionally, your lawyer will be able to answer questions regarding the legal process, including whether you need to file a complaint with a specific government agency first or can directly sue your employer for wrongful termination. Your lawyer can also help you prepare and file a case, assist you in collecting evidence to support your claim, and can provide representation in court on the matter.

Finally, your lawyer will also be able to determine whether your case should address more than just employment law claims, such as invasion of privacy issues, HIPAA violations, and various other related matters that may have constituted unlawful conduct by your employer.

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