California's New Laws: Drug Testing Changes Explained

California's constitution gives employees a right to privacy at work, meaning employers in California do not have an automatic right to drug test employees. While drug testing is allowed in California, it is only permitted under very specific circumstances. For example, employers may administer drug tests to their employees if they have a drug and alcohol-free workplace. However, employers with 25 or more employees must accommodate any employee who volunteers to enter a rehabilitation program. From January 2024, employers cannot discipline, fire, or take adverse action against an employee based on a positive test for marijuana, under Assembly Bill 2188.

Drug testing is allowed in California, but only under specific circumstances

Random drug testing is not permitted in California unless public safety is a concern, and the employer must have strong evidence that the employee is a threat to the public. Courts have upheld random testing for very safety-sensitive positions. Public agencies cannot conduct drug testing of current employees who were applying for promotions, but can require pre-employment drug testing of applicants.

Employers may administer drug tests to their employees, especially for businesses with a drug and alcohol-free workplace. However, all California businesses must take the new marijuana laws into account to prevent litigation. From January 2024, it will be against the law to penalize workers for using marijuana during their off-work hours. However, if a worker is impaired by marijuana at work, an employer can fire or suspend them.

Employers must give notice to their employees before performing any drug test, except for employees in public jobs, who may be subject to random drug testing.

Random drug testing is not permitted unless public safety is a concern

In California, random drug testing is generally not permitted unless public safety is a concern. This means that employers in California do not have an automatic right to drug test their employees. However, there are certain exceptions and specific circumstances where drug testing may be allowed or even required.

Firstly, it is important to note that California's constitution includes a right to privacy, which extends to both government and private industry employees. This means that employers in California cannot conduct random drug testing of their employees without a compelling interest. The courts have upheld that employers must show that there is no less intrusive means of testing for drug use, such as through a skills test, before resorting to more invasive drug tests.

While random drug testing is generally prohibited, there are certain narrowly defined instances where it may be permitted. For example, random drug testing is allowed in "safety-sensitive" positions, such as in the transportation, aviation, and defence industries. In these cases, the safety of the public and coworkers may depend on the alertness of fellow employees, and employers will be liable if an employee under the influence of drugs or alcohol causes harm to a third party. Additionally, employers are permitted to conduct drug testing after a serious workplace accident to determine if drug or alcohol use was a contributing factor.

It is worth noting that California has provided protections for users of recreational marijuana. A new state law, effective January 1, 2024, known as AB 2188, prohibits employers from disciplining, firing, or taking adverse action against an employee solely based on a positive test for marijuana. However, employers can still discipline or terminate employees based on test results that show present impairment or the presence of psychoactive chemical compounds of marijuana.

California employers should be mindful of any local regulations and industry-specific requirements when considering drug testing. Additionally, they should review their city's ordinances and any industry-specific regulations, as there may be additional restrictions or requirements for drug testing.

Marijuana use is legal in California, but employers can fire employees for using it at work

Marijuana use has been legal in California since 2016, when the state's voters legalized its recreational use. However, this does not mean that employees are free to use it at work. While California's constitution gives employees a right to privacy at work, employers still retain certain rights when it comes to regulating marijuana use in the workplace.

The at-will employment doctrine, for example, gives employers the right to terminate employees for any lawful reason or no reason at all, as long as it does not violate legal protections. Most employers have workplace drug policies that prohibit employees from using drugs, including marijuana, during and outside of work hours. The Control, Regulate, and Tax Adult Use of Marijuana Act, or Proposition 64, explicitly states that it is not intended to interfere with an employer's right to maintain a drug-free workplace. Therefore, if an employer discovers that an employee is using marijuana, they can terminate their employment.

However, California law does limit an employer's ability to drug test employees. Drug testing of employees is allowed in California, but only in very limited and strictly defined circumstances. An employer with a reasonable suspicion that an employee is using drugs may be on safe legal ground to test, but this suspicion must be based on objective facts. Random testing is more controversial, although courts have upheld random testing for very safety-sensitive positions. Federal law requires testing by employers in safety-sensitive industries, including transportation and aviation.

Starting in 2024, California's Assembly Bill 2188 (AB 2188) prohibits employers from using the results of hair or urine tests for marijuana in their decisions to hire, fire, or penalize workers. It also prohibits employers from asking job applicants about their prior use of cannabis. The bill amends the Fair Employment and Housing Act (FEHA) by making it unlawful for an employer to discriminate against an applicant or employee for using marijuana outside of work and for having non-psychoactive cannabis metabolites in their system. This means that employers will need to use other testing methods that focus on the presence of psychoactive components of marijuana in an individual's bodily fluid and/or impairment tests against the employee's baseline performance.

From 2024, employers cannot discriminate against employees for past marijuana use

California has long recognized the right to privacy for employees, which means that employers do not have an automatic right to drug test their employees. However, this right to privacy does not extend to employees in certain safety-sensitive industries, such as transportation and aviation, where federal law requires drug testing.

In 2024, California will introduce new protections for employees and applicants who use marijuana. Assembly Bill (AB) 2188, which comes into effect on January 1, 2024, amends the Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against employees or applicants for off-duty marijuana use. This means that employers cannot discipline, fire, or otherwise take adverse action against an employee solely on the basis of a positive test for marijuana.

AB 2188 also prohibits employers from using the results of hair or urine tests for marijuana in their decisions to hire, fire, or penalize workers. These tests can detect traces of cannabis for days or weeks after consumption, but do not indicate whether an employee is currently impaired on the job. Therefore, employers will need to use other testing methods that focus on the presence of psychoactive components of marijuana in an individual's bodily fluid and/or impairment tests against the employee's baseline performance.

It is important to note that the new law does not permit employees to possess, be impaired by, or use marijuana on the job. Employers still maintain the right to maintain a drug-free and alcohol-free workplace. Additionally, there are certain exemptions to the new law, such as federal employees and those in the construction trades who are not protected by AB 2188.

California's constitution gives employees a right to privacy at work

California's constitution gives employees the right to privacy at work. This means that employers in California do not have the automatic right to drug test their employees. This right to privacy is considered one of the most important legal rights that residents of the state of California possess.

The right to privacy in the workplace is guaranteed to workers under Article 1, Section 1 of the California Constitution, in addition to the state's labor code. This gives employees the ability to sue employers for violations of their privacy rights. To do so, the employee must show that the employer violated their reasonable expectation of privacy. For example, an employee's reasonable expectation of privacy may be violated if they are required to disclose the medications they are currently taking, or to authorise their employer to access information about their body.

However, the right to privacy is not absolute, and there are certain circumstances in which employers may be on safe legal ground to drug test their employees. For example, an employer that has a reasonable suspicion that an employee is using drugs may be justified in drug testing, provided that the suspicion is based on objective facts. Random drug testing is more controversial, although courts have upheld random testing for very safety-sensitive positions.

In addition, while marijuana is legal in California for both medical and recreational purposes, employers are not permitted to allow employees to possess, be impaired by, or use marijuana on the job. From January 2024, employers cannot discipline, fire, or take other adverse action against an employee solely on the basis of a positive test for marijuana. However, employees can still be disciplined or terminated based on test results that show present impairment or the presence of psychoactive chemical compounds of marijuana.

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