In short, yes. In the state of California workplace drug testing is legal. However, there are employee drug testing laws in California which provide specific guidelines for how such drug testing must occur. The most important guideline is that there must be no employment discrimination associated with the drug testing performed by the employer.
In other words, employer drug testing policies must be non-discriminatory and must not interfere with an employee’s privacy rights. For instance, it is commonly allowed for an employer to drug test prospective employees, after offering the prospective employee a position with the company.
However, randomly drug testing current employees is more heavily restricted under California law. For example, random drug testing may only be performed under specific circumstances, such as an employee having a safety-sensitive position that requires them to maintain a clean record of not taking illegal drugs.
Definitions: In general, safety-sensitive positions are understood to be roles where an employee’s impaired performance could pose a significant risk to their own safety or the safety of others. Examples commonly include heavy machinery operators, transportation workers, and those who work with hazardous materials. The specific criteria for determining whether a position is safety-sensitive, however, may vary depending on the context and applicable regulations.
It is also important to note that government employers have different standards and regulations when it comes to drug testing. However, similar to private sector drug testing, government employee drug testing must still balance individual privacy rights with public safety concerns.
State Variations: The laws that govern drug testing can vary significantly across different states. There are some states that have stricter regulations on employer drug testing than California, while other states have more lenient rules.
The legality of testing for marijana, in particular, is subjected to more variation because of differing state laws regarding recreational and medical marijuana use. It is important to review the specific laws of the relevant state to determine the applicable rules.
What Are the Rules for Testing Current Employees?
Once again, under California employee drug testing laws, California employers are generally permitted to require employees to undergo a drug test as a condition for them being hired for employment.
However, for such drugs to be considered valid, an employer must test all applicants for the position and not single out a single applicant based on a protected characteristic, such as their:
- Race
- Sex
- Nationality
- Origin
- Sexual orientation
- Disability
In other words, an employer may not drug test an applicant based on a discriminatory reason. As mentioned above, when it comes to drug testing current employees, the laws surrounding drug testing are different.
Process/Steps: In general, an employer should use a certified laboratory and follow the established protocols for sample collection, handling, and analysis to ensure accuracy. Employees usually have the right to be informed of the testing process as well as to challenge the results if they think an error occurred.
There are some regulations that may also require employers to offer employees the opportunity to explain a positive test before they take disciplinary action.
In California, randomly drug testing current employees is typically only permitted under very specific circumstances. The general rule is that an employer can randomly drug test an employee if that employee works in a position that affects public safety, such as a bus driver or airplane pilot.
Timelines: As a general rule, an employer should conduct a drug test reasonably promptly after an incident or when reasonable suspicion arises. Delaying the drug test may compromise the accuracy of the test results or raise questions regarding the employer’s motives. The specific timeframe that is considered reasonable, however, may depend on the applicable regulations and circumstances of the situation.
However, if there is a compelling reason for an employee to drug test an employee, the courts may consider those matters on a case-by-case basis. Current employees could be randomly drug tested but may not work in the public safety sector. If this is the case, the employer must be able to prove reasonable suspicion that the employee was using or abusing illegal drugs.
For example, an employer may demonstrate that they had reasonable suspicion that a specific employee was using illegal or illicit drugs based on evidence, such as:
- The employee was behaving in an erratic manner or in an overly unprofessional manner
- The employee passed out during the performance of their work duties or was found unresponsive
- The worker’s job performance has significantly declined since the time they were hired by the company
Costs/Fees: Usually, an employer will be responsible for covering the costs that are associated with mandatory drug tests required for employment or continued employment. If an employee chooses to undergo independent drug testing on their own, however, they will be responsible for those costs. The specific rules about cost allocation may vary depending on the context as well as any applicable policies or agreements.
If the employer is successful in proving their case, the court will likely uphold their reasons for administering the drug test, and their act will not be deemed to be an invasion of privacy or unlawful in any other manner.
However, if the court finds that the employer had a discriminatory motive for administering the drug test, then the employee may be able to recover civil damages. Once again, a balance test will weigh the employer’s reasons for the drug test against the employee’s right to privacy.
It is important to note California is an at-will employment state. This means that employment that is not secured with an employment contract may be terminated by either the employer or the employee at any point in time, for any reason, or for no reason at all.
Further, neither party has to provide notice to the other party. However, once again, an employer cannot fire an employee based on discrimination or retaliation.
Can I Refuse a Drug Test at Work?
There are situations in which an employee may refuse a drug test or decline to take a drug test. For example, the employee may be diagnosed with a medical condition that falls under the Americans with Disabilities Act (“ADA”). In that case, they may refuse to take a drug test if the drug test would contravene the reasonable accommodations provision under the ADA.
Additionally, an employee can refuse to take a drug test if it would violate a state law. For example, if the employee believes and can prove that the reason for the drug test is discriminatory, then they may refuse to take the drug test. Then, if the employer terminates their employment for the refusal, they can seek damages for such termination.
Further, refusing drug tests for religious reasons may also be grounds for filing an employment discrimination lawsuit against their employer. However, the employee must be able to prove that their employer only forces people who practice a certain religion to submit to random drug testing. In other words, refusal to take a drug test must usually be based on the refusal to submit to a discriminatory policy or based on state law.
Evidence/Documents: An employee may use various types of evidence to support their claim, such as memoirs, emails, or other written communications that suggest discriminatory bias. Witness testimony from supervisors or coworkers may also be helpful.
Statistical data that shows a pattern of discriminatory drug testing practices can further strengthen a discrimination claim. The specific evidence that is required will depend on the facts and circumstances of each case.
What Are the Consequences of Refusing to Take a Drug Test?
There are many different consequences that may arise for refusing to take a drug test. For prospective employees, the main consequence of refusing to take a drug test is that they will not be able to move forward with the position and begin employment.
For current employees, the implications of refusing a drug test can result in termination or suspension. This is especially true if the employee’s employment contract or company policies have clear stipulations regarding drug use.
In the absence of company policies or an employment contract that contains drug policies, employers are still allowed to terminate an individual from their position for any reason or no reason at all since California is an at-will employment state.
Importantly, failing a drug test in California can have similar consequences. A prospective employee will not likely be offered the position that they applied for, and a current employee may be terminated for violating their contract, violating company policies, or for failing to meet their job duties.
The nature of the employee’s job, the employee’s role within the company, and the specific drug that is detected by the test will likely play a factor in the company’s decision whether or not to terminate or suspend the employee.
Additionally, employees who are terminated for failing or refusing to take a mandatory drug test will typically lose their employment benefits as well. This means the employee could potentially forfeit the health insurance benefits provided through their employer.
Are There Any Exceptions?
In short, yes, there are exceptions to having to submit for a mandatory drug test. Examples of common situations in which an employee can refuse to take a mandatory drug test and not be terminated or punished by their employer for doing so include:
- When the employee can prove that an employer’s request for them to take a mandatory drug test is based on discriminatory reasons that would amount to workplace discrimination or be considered a selective drug testing policy.
- If the employee is able to demonstrate that they did not submit to the drug testing, but the employer performed drug testing without their knowledge.
- For instance, if an employee collects a sample of hair without the employee knowing and submits that for drug testing, that will be considered a complete invasion of privacy and illegal.
- When an employee can prove that they have a disability that is protected by the ADA, and the employer failed to comply with the reasonable accommodations necessary to administer a drug test to an employee with a disability.
- If the employer otherwise violates a state law that imposes legal restrictions on specific kinds of drug tests and the employer requests that its employees undergo that type of drug testing.
- For example, in California, medical marijuana employment laws may impact an employer’s ability to test their employee for medicinal marijuana or recreational marijuana.
- A local attorney in California will be familiar with the most up-to-date laws regarding marijuana drug testing, as the law in the state changes rapidly.
The Importance of Hiring a Lawyer: Trying to navigate a drug test refusal issue without having legal representation may be risky. An employee may not be fully aware of their rights or the applicable laws, which can result in missteps that may harm the case. A lawyer can provide valuable guidance, assess the strength of an employee’s argument, and advocate on the employee’s behalf to protect their interests.
Do I Need an Attorney if I Refuse to Take a Drug Test?
Once again, an employer may terminate or fail to hire you if you refuse to take a mandatory drug test. As such, if you have been selected to take a drug test for prospective employment or are being asked to submit to a drug test as a current employee, and you suspect that it is for a discriminatory reason, then it is in your best interests to consult a California discrimination lawyer.
LegalMatch can help you locate an experienced California discrimination attorney and set up an initial consultation with them. At your consultation, the attorney can analyze your case and help you determine if you have a solid legal foundation for refusing the drug test. An attorney will then be able to provide you with your best course of legal action and answer any questions you may have.
Finally, you might have been terminated as a result of a refusal to take an illegal test. If this is the case, an attorney will be familiar with all of the laws necessary to bring a civil lawsuit against your employer for damages or reinstatement of your job. Further, an attorney will also be able to represent you in court, as necessary.
