Gavin Howe
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. 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. Random drug testing is considered an invasion of privacy, and employers may be sued for defamation if they publicize that an employee tested positive. However, employers may administer drug tests to their employees, especially for businesses with a drug and alcohol-free workplace, and if the employee is given notice.
| Characteristics | Values |
|---|---|
| Random drug testing | Not permitted unless public safety is a concern and the employer has strong evidence that the employee is a threat to the public. |
| Exceptions | Employees in public jobs, safety-sensitive positions, and federal contractors. |
| Notice | Employees must be given notice before a drug test is administered, except in the case of public jobs. |
| Pre-employment testing | Allowed after a job offer is made but before employment begins. |
| Marijuana | Legal for recreational and medical use but employers must take new marijuana laws into account to prevent litigation. |
| Right to privacy | California's constitution grants employees a right to privacy at work, which includes protection against random drug testing. |
| Defamation | Employees may have a valid claim for defamation if the employer publicizes a positive test result. |
| Drug-free workplace | Employers may require a drug-free workplace and can choose to include a drug-free workplace provision in their employee handbook. |
| Accommodation | Employers with 25 or more employees must reasonably accommodate those who volunteer to enter a rehabilitation program. |
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What You'll Learn
- Random drug testing is generally not permitted in California
- Random testing may be allowed in safety-sensitive positions
- Employees must be notified before a drug test is administered
- Pre-employment drug testing is allowed under certain conditions
- Marijuana use does not warrant employee discipline or termination
Random drug testing is generally not permitted in California
The California Supreme Court has restricted private employers' powers to conduct drug tests, upholding the right to privacy. In 2009, the Supreme Court refused to hear challenges from companies against lower court rulings in favor of workers who sued their employers for being fired after refusing to submit to random drug tests. This led to the San Francisco ordinance banning random testing.
There are, however, some exceptions to the rule against random drug testing. Firstly, certain federal authorities require California employers to establish a controlled substances and alcohol testing program that includes random testing. These federal authorities include the Department of Transportation, Federal Aviation Administration, and United States Coast Guard. Secondly, random drug testing may be permitted in very limited circumstances, such as when an employee works in a safety-sensitive position and if allowed to work under the influence of drugs, would pose an imminent safety or health threat. Examples of such positions include nuclear power plant workers, aviation personnel, and government employees with secret national security clearances.
Employers must be aware of the laws surrounding drug testing and the right to privacy, as failing to abide by these laws can result in legal action. Employees who have been terminated for refusing to submit to drug testing can use wrongful termination theories as a basis for lawsuits.
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Random testing may be allowed in safety-sensitive positions
In California, random drug testing is not permitted unless public safety is a concern. The employer must have strong evidence that the employee is a threat to the public. This is a very difficult standard to meet.
Courts have upheld random drug testing for very safety-sensitive positions. For example, certain federal authorities require California employers to establish a controlled substances and alcohol testing program that includes random testing. This includes employees in transportation, aviation, and contractors with NASA and the Department of Defense.
Other safety-sensitive positions that have been deemed to present a safety threat include nuclear power plant workers, correctional officers, hazardous pipeline employees, government employees with secret national security clearances, and civilian employees at a chemical weapons plant.
It is important to note that California's constitution gives employees a right to privacy at work, which means employers in California do not have an automatic right to drug test employees. Therefore, random drug testing in California is generally not advisable unless the employer is confident that federal law authorizes the random drug test or the employee is truly performing a safety-sensitive role.
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Employees must be notified before a drug test is administered
California's constitution gives employees a right to privacy at work, meaning that employers do not have an automatic right to drug test their employees. While drug testing is allowed in California, it is only permitted under very specific circumstances. Random drug testing is not permitted unless public safety is a concern, and the employer must have strong evidence that the employee is a threat to the public. For example, random drug testing is allowed for employees in safety-sensitive positions, such as nuclear power plant workers, aviation personnel, and government employees with secret national security clearances.
Employers may also perform drug tests on applicants, as long as this is done fairly and legally. This must be done after the job offer is made but before the employee begins work. Employers are not required to perform pre-employment drug testing, but it is recommended that they seek legal representation if they have any concerns.
It is important to note that California's Drug-free Workplace Act of 1990 requires employers who contract with or receive grants from the state of California to certify that they provide a drug-free workplace. Employers must be aware of the new marijuana laws in California and take them into account to prevent litigation. While marijuana is legal in California for both medical and recreational purposes, employers may still discipline or fire employees based on a positive test for marijuana if they are impaired while on duty.
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Pre-employment drug testing is allowed under certain conditions
Pre-employment drug testing is allowed in California, but only in limited and strictly defined circumstances. California's constitution gives employees the right to privacy at work, which means employers don't have an automatic right to drug test employees. However, public agencies can require pre-employment drug testing of applicants.
Employers can only request a drug test after providing a conditional offer of employment to a potential new hire. Employers must also be directed on which drug tests are allowed under the new rules to ensure compliance with state directives. The regulations emphasize protecting the privacy of individuals undergoing drug testing, and employers must maintain strict confidentiality surrounding the results.
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. For example, random testing has been upheld for very safety-sensitive positions, such as those involving the operation of commercial motor vehicles, performing public safety activities, or carrying a firearm.
California employers can enforce a drug-free workplace policy, including prohibiting marijuana, even though recreational and medical marijuana are legal in the state. If an employer contracts with or receives grants from the state of California, they are required to certify that they provide a drug-free workplace. Employers with 25 or more employees must reasonably accommodate any employee who volunteers to enter a drug rehabilitation program, provided it does not impose an undue hardship on the business.
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Marijuana use does not warrant employee discipline or termination
In California, drug testing of employees is allowed, but only in limited and strictly defined circumstances. The state's constitution gives employees a right to privacy at work, meaning employers do not have the automatic right to drug test employees. Random drug testing is not permitted unless public safety is a concern, and the employer must have strong evidence that the employee is a threat to the public.
The general intent of employment-related drug testing is to test for impairment on the job and/or at the worksite, not for long-term use. As such, employers should focus on performance and attendance issues for potential discipline, including slurred speech, incoherent speech, swaying, stumbling, or sleeping at work. Other bodily signs of marijuana impairment include red eyes, poor muscle coordination, delayed reaction times, and increased appetite. However, it is important to note that there are currently no drug tests that can detect current marijuana impairment, so employers should rely on their observations of an employee's behaviors for potential disciplinary action.
There are a few exemptions to this new law. AB 2188 exempts employees in the construction and building industries and those hired for positions that require federal background checks and clearance. It is important to note that AB 2188 does not exempt employees in other safety-sensitive industries such as transportation, health and services, manufacturing, and agriculture. Additionally, the law explicitly states that nothing in the law permits an employee to possess, be impaired by, or use marijuana on the job. All employers maintain the right to maintain a drug-free and alcohol-free workplace.
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Frequently asked questions
No, employers in California cannot require random drug testing unless public safety is a concern, and the employer must have strong evidence that the employee is a threat to the public.
Employers in California must give notice to their employees before performing a drug test. Drug testing is allowed in very specific circumstances, such as following accidents or when there is a reasonable suspicion of drug use.
Failing to abide by California's drug testing laws can result in legal action. Employees can use wrongful termination theories as a basis for lawsuits.
A new state law, effective January 1, 2024, states that employers cannot discipline, fire, or take adverse action against an employee solely based on a positive test for marijuana. However, employees who are impaired while on duty are not protected.
No, San Francisco has passed a local ordinance banning random drug testing. Employers in San Francisco should consult legal counsel before engaging in any drug testing of employees.
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