Has your California employer or prospective employer asked you to take a drug test? Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
California is one of the few states with a state Constitution that includes a right to privacy. That right extends not only to government employees, but to employees in private industry as well. California courts have held that this right is implicated by drug testing, but that doesn’t always mean drug testing is illegal. Testing is judged on a case-by-case basis, balancing the employer’s reasons for testing against the intrusion on the employee or applicant.
Rules for Job Applicants in California
California court cases have found that employers may require employees to pass a drug test as a condition of employment. As long as an employer tests all applicants for particular job positions and doesn’t single out certain applicants based on protected characteristics (such as race or disability), courts have upheld this type of testing.
California has a “compassionate use” law, which allows residents to use marijuana for medical purposes. State law requires users to get a doctor’s written authorization to use marijuana. A patient who has a valid prescription may not be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. However, California’s Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability.
Rules for California Employees
When determining whether a drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy. California has recognized that employees start with a stronger claim here: Employees already have a job (and a work history the employer can use to evaluate their performance), which gives them more of a stake in the process and may give the employer less of a need to test.
An employer that has a reasonable suspicion that an employee is using drugs may be on safe legal ground in testing, provided that the suspicion is based on objective facts. Random testing is more controversial, although courts have upheld random testing for very safety-sensitive positions.
Notice and Procedural Rights for Employees
California statutes don’t set up specific drug testing procedures and protocols. Because of the balancing test courts apply to drug tests, however, employers are more likely to prevail if they take steps to diminish employees’ privacy expectations (for example, by adopting a written policy explaining when drug testing will be required).
Legal Claims Arising From Drug Testing
In addition to violating an employee’s or applicant’s constitutional right to privacy, drug testing may give rise to other legal problems. Here are some examples:
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable (unless the drug is medical marijuana).
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.