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. This means that many workplace drug testing policies have to apply to all employees instead of random testing.

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. Though California has a “compassionate use” law which pertains to legal medicinal marijuana use, an employer may still refuse to hire someone who has tested positive for marijuana.

Types of Testing

  1. Pre-employment testing: an employer requires the job-seeker submit to a drug test prior to being placed on payroll.
  2. Random testing: an employee may only be randomly drug tested IF they work in a position dealing with public safety.
  3. Reasonable suspicion: if an employer has a reasonable suspicion of an employee using or abusing drugs or alcohol, then a court would likely uphold the validity and reason of an administered drug test.

What Happens if an Employee Fails a Drug Test?

If a drug test was legally administered, and an employee fails, then an employer has a few options. If it was a pre-employment test, the employer can refuse to hire the potential employee. If a current employee tests positive on a drug test, the employer then has the right to terminate him.

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

Depending on how your rights were violated, then it is possible for you to sue your employer. For example, 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 can have a random drug testing policy.)

You can also have a claim for invasion of privacy, depending on the type of the drug test. For example, if they require you to disrobe and urinate in front of another person even if it is to make sure that you do not cheat the test.

However, it’s important to look at the drug testing policy of your workplace. There are cases where drug testing will violate employee’s rights, even if they outline the procedure and policy. But many workplaces carefully write out their policy and agreeing to it will be part of the hiring process. 

Do I Need a Lawyer?

Whether you are an employee adversely affected by workplace drug testing, or an employer concerned with drug testing issues, an experienced California employment lawyer can offer legal counsel and help you take the necessary steps to protect yourself.