Drug testing is used to screen employees to determine who can and cannot perform the job duties. Some employers are required by the federal government to regularly test their employees for drugs in accordance with the Drug-Free Workplace Act.
Generally speaking, private employers have more leeway in their testing policies than that of government employers. Private employers usually are not required to obtain consent from employees in order to conduct a test, and employees are subject to sanctions if they refuse a lawful request for a drug test. Many courts do require some form of notice or warning that a drug test may be required during the course of employment.
Drug testing is allowed in the private sector in several situations:
- Pre-Employment: Drug testing job applicants is the most common type of drug testing utilized by private employers. Courts have upheld pre-employment testing, reasoning that employers have a right to seek qualified applicants that are drug free. Courts also assert that 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 allowed. What constitutes reasonable suspicion varies depending on the court. Some of the most 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 attacked as 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 and in situations involving no direct supervision of employees. In order to actually be lawful, the testing must be random and not directed at specific employees for alternative reasons, such as their race or employment history; and/or
- Post-Accident: Post-Accident testing generally affects workers compensation claims. A positive test following a work accident often creates a presumption that the accident was caused by intoxication. This must be rebutted by the employee before they may claim compensation benefits.
If the legality of a drug test is questioned, a judge will use a balancing test of an employer’s reason for testing versus an employee’s right to privacy.
Employee drug testing laws vary by state. In California’s state Constitution, the right to privacy extends to government as well as private industry employees. However, California courts have found that an employer may test their employees, so long as no one is singled-out or discriminated against. What this means is that many workplace drug testing policies must apply to all employees, instead of random testing.
What Drugs Can A California Employer Test For? What Is California’s Law Regarding Medical Marijuana Use and Employee Drug Testing?
Generally speaking, employers will test an employee for illicit drugs. The most common examples of drugs than an employer may test for include:
- Nicotine; and
Twenty-three states and the District of Columbia have legalized the use of medical marijuana, while Alaska, Colorado, Oregon and Washington have legalized it for recreational use. With so many states recognizing legal use of marijuana, there is now an issue of whether employers in those states are permitted by law to terminate an employee who uses medical marijuana for a recognized disability.
The Americans with Disability Acts, or “ADA,” prohibits discrimination against individuals with disabilities for employment. These laws require employers to make reasonable accommodations for disabled employees in order to enable them to perform their job. Medical marijuana is most commonly prescribed for:
- Crohn’s disease;
- Multiple Sclerosis; and
- Any other illness for which marijuana provides relief.
Though California has a “compassionate use” law regarding legal medicinal marijuana use, an employer may still refuse to hire someone who has tested positive for marijuana. In 2008, the California Supreme Court held that employers may fire employees for marijuana use, even when used for medical reasons. This is due to the fact that marijuana is illegal under federal law.
While there are no laws that require employers to permit on-duty drug use nor prohibit workplace drug testing, these anti-discrimination provisions raise questions about the validity of adverse employment actions based on positive drug tests in such states.
To simplify, the law allows private employers to have a “zero tolerance” policy for those who test positive for marijuana, even in states where it is approved for recreational use. Whether an employer enacts such a policy or makes an exception for medical marijuana users is at the employer’s decision. An example of this would be how in San Francisco, taxi drivers are subject to drug testing. However, taxi drivers who possess valid medical marijuana licenses will not face suspension or sanctions should they test positive for marijuana.
What Happens If I Fail a Drug Test in California?
Each state or municipality maintains its own rules regarding drug testing in the workplace, as well as the consequences for failing a drug test. If you fail a pre-employment drug test, the company may refuse to hire you. If you fail a drug test while employed, your employer may 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. Because of this, any consequence of failing a drug test often depends on each specific employer.
In California specifically, the options available to an employer will vary greatly based on whether the test was legally administered. If so, and the drug test was a pre-employment test, the employer may refuse to hire the potential employee. If a current employee tests positive on a drug test, the employer then has the right to terminate them.
What Rights Do California Employees Have? Can I Sue If My Rights Were Violated by Workplace Drug Testing?
Employee drug testing is allowed under most circumstances, and required by the federal government under the Drug-Free Workplace Act in some specific situations. However, employees do have some rights as well as expectations of privacy. Employee Rights when undergoing drug testing are:
- Employers must have a legitimate, nondiscriminatory reason to test;
- Generally speaking, employees must be given notice of testing;
- 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 you are a California employee, depending on how your rights were violated, it may be possible for you to sue your employer. An example of this would be if you were chosen for drug testing due to your race, age, or gender instead of any reasonable suspicion or the nature of your job. Under California law, positions that have high security requirements may lawfully maintain a random drug testing policy.
You could also have a claim for invasion of privacy, depending on the type of the drug test. An example of this would be if the employer requires you to disrobe and urinate in front of another person. This remains true, even if the employer’s reasoning is that doing so is to ensure that you do not cheat the drug test.
However, it is important to closely review the drug testing policy of your workplace. There are instances in which drug testing will violate an employee’s rights, even if they outline the procedure and policy. Many workplaces carefully write out their policy, and agreeing to it will be part of the hiring process.
Do I Need a California Employment Lawyer if I Have a Drug Test Issue?
If you have been terminated over the results of a positive drug test, or are otherwise adversely affected by workplace drug testing, you should consult with a California employment lawyer. An experienced and local employment attorney may help you contest the results of the test itself, or pursue other legal remedies such as litigation if necessary. An attorney will also protect your legal rights, as well as represent you in court as needed.
If you are an employer concerned with drug testing issues, or would like to draft a policy that is mindful of state laws as well as employee rights, you should also consult with an employment lawyer.