Since California legalized recreational marijuana, random drug testing in the workplace has become a hot topic. Between a legal form of drugs and the fact that California’s State Constitution includes a right to privacy provision, it is no wonder that employees are so confused about their rights when it comes to drug testing in the workplace.

Before getting into specifics, it is important to have a basic understanding of what random drug testing is first. In general, random drug testing refers to when an employee is subjected to a type of medical examination that can detect the presence of drugs and other illegal substances in the body. For example, a worker may have to give a urine sample or a tube of their saliva to a medical professional for testing purposes.

This procedure is considered random when an employer does not inform its employees about an upcoming drug test and selects individuals in no particular order to undergo a drug evaluation. Random drug testing may also be known as “spot” drug testing.

According to California drug testing laws, employers are only allowed to conduct random drug tests in certain situations. There are two primary scenarios in which random drug testing will be permitted under the law. These include:

    • If an employee works in a position where their actions may place the general public in harm’s way. For example, if the employee works in a nuclear power plant or has a particular level of security clearance as a government employee.

 

  • The second and more questionable of the two scenarios is if the employer has reasonable suspicion that a worker is using or abusing illegal substances.

Thus, although California employees are limited in the types of drug tests that can be used and the conditions in which random drug testing can occur, employees may still be subjected to lawful random drug testing. After all, employers do have a right to maintain a drug free workplace.

Types of Testing

Under California employee drug testing laws, employers may subject both job applicants and current workers to several forms of drug testing. The three main types of drug testing that California employers can lawfully use include:

    • Pre-employment drug testing: An employer may require a prospective job candidate to submit to a drug test before they are officially hired and placed on the company payroll. However, the test cannot be assigned subjectively (e.g., based on an applicant’s traits, such as race or gender) and the employer must test all potential hires.

 

    • Random drug testing: In California, random drug testing is typically only permitted under very specific circumstances. The general rule of thumb is that an employee can only be randomly tested if they work in a position that affects public safety (e.g., airplane pilot).

 

  • Reasonable suspicion: If an employee is randomly drug tested and they do not work in the public safety sector, then the court will rule on a case by case basis. An employer will have to prove with certainty that a worker is using or abusing drugs, and that there are unambiguous suspicions of drug activity. The employer can do this by providing fact-based evidence.
    • If an employer is successful in proving their case, a court will most likely uphold their reasons for administering the drug test and the act will not be deemed to be unlawful. On the other hand, if the court finds that an employer had discriminatory motives for testing the employee, then the employee may be able to receive damages, or at the very least, be reinstated in their position.
      • In addition, if the legality of a drug test is called into question, the court will make a decision using California’s balance test. In applying the balance test, the court will weigh an employer’s reasons for the drug test against an employee’s right to privacy.

What Rights do Employees Have When Drug Tested in California?

There are a number of legal rights and/or protections that employers must comply with when drug testing employees in California. Some rights and protections that California employees have include:

  • The right to be free from harassment and employment discrimination;
  • The right to privacy, including the right to be free from defamation as a result of being required to take a drug test;
  • The right to be free from random drug testing (unless one of the two permitted situations arise);
  • The right to reasonable accommodation for voluntary entry into a drug rehabilitation program (so long as it does not cause undue hardship on the employer); and
  • The right to use legally prescribed pharmaceutical medications.

What Happens if an Employee Fails a Drug Test?

If an employee fails a lawfully administered drug test, then their employer has a right to fire them. An employer may also refuse to hire a prospective job candidate if they fail their pre-employment drug test.

An employee may be able to bring a lawsuit against their employer if they feel that the drug test was unlawful. If they lose, however, their employer may terminate them without the possibility of receiving unemployment benefits or require that they enter a rehabilitation or treatment program.

Can Employees Who Use Medical Marijuana for a Disability in California Be Terminated?

An employee who uses and possesses medical marijuana can still be terminated if they test positive for the drug. This is true even in situations where an employee has a valid medical marijuana card. Although there may be some exceptions to the general rule if the employee falls under the protections of California’s Compassionate Use Act.

Under this Act, employees have a right to be free from employment discrimination (e.g., they cannot be fired for having a disability), and to receive reasonable accommodations in the workplace. Despite these protections, federal law does not recognize marijuana as a legal substance and thus the state does not consider marijuana to be a necessary medical treatment or an item that employers must “reasonably accommodate.”

Accordingly, employers can legally fire, refuse to hire, ban smoking in the workplace, and implement any other policies that help maintain a drug free environment for all workers. Therefore, employees who use medical marijuana for a disability may want to consider other treatments until more protections are passed.

Can I Sue If My Rights were Violated by Workplace Drug Testing?

An employee whose rights were violated by workplace drug testing may be able to sue their employer. For instance, an employee may sue if their employer required them to take a drug test based on discriminatory reasons, such as because of their race, gender, or age, as opposed to having concrete evidence indicating reasonable suspicion of drug use or abuse.

An employee may also have a claim for invasion of privacy if their privacy rights were violated during the drug test. For example, if the employer broadcasts the results of the employee’s drug test to the entire company or if the test was conducted in an unreasonable manner, such as if the employer instead of a medical professional performed the test and forced the employee to remove their clothes while taking it.

Another way that an employee’s rights can be violated and may give them grounds to sue is if an employer breached their company’s drug testing policy or procedures. Additionally, the company’s drug testing policy may be improper on its own.

Thus, if a worker believes that their rights were violated during an incident involving workplace drug testing, they should contact a local employment lawyer as soon as possible. A lawyer can apprise the worker of their rights, determine whether they have a viable claim, help them navigate the legal process, and assist them in bringing a lawsuit against their employer.

Do I Need a Lawyer for Help with Workplace Drug Testing in California?

State laws concerning marijuana use and employee termination are still developing, which can make it difficult for an individual to ascertain what they must do in order to bring a wrongful termination lawsuit against their employer. While the process for resolving issues involving illegal substances or improper drug tests may be clearer, it can still be beneficial to consult a lawyer about any laws or legal procedures that seem confusing.

Therefore, between undeveloped laws, intricate procedures, and the prospect of not only losing the case, but also your job, it may be in your best interest to hire a California employment lawyer if you need help with an issue concerning workplace drug testing in California. A local employment lawyer who has experience in handling such matters will already be familiar with the current laws and will know how they apply in the workplace.

In addition, your lawyer can help you prepare and file a claim against your employer, can determine what remedies you may recover if the case is successful, and can advocate on your behalf at both court hearings and settlement conferences. Your lawyer may also recommend alternative options for legal recourse if they feel you do not have a strong enough case or if you do not want to pursue the matter in court.

Finally, if there are any other issues that should be argued as part of your employment law case (e.g., invasion of privacy, HIPAA violations, etc.), your lawyer will be able to spot them and can explain why they should be addressed as well.