California Employment Drug Test Laws

Posted by Sessions & Kimball |

It is left to the discretion of employers in California to determine whether to require an employee or would-be employee to pass a drug test as a condition of employment or continued employment. California law does not require drug testing by employers, with the exception of when testing is required for compliance with federal regulations. It is important that employees stay abreast of their rights in order to avoid unwarranted and potentially unlawful drug screening by their employers. 

Right to Privacy

Under California’s Constitution, residents of the state have an indisputable right to privacy. This immutable right is often interpreted by the courts to mean that employees have the right to expect privacy, and this extends to the right to avoid being tested for drugs, at least under some circumstances. 

Pre-Employment Drug Screening

Employers in California are permitted by law to require prospective workers to submit to a drug test as a condition of being offered a job. However, the applicant or candidate still has a right to privacy. The position the courts have historically held on pre-employment drug testing is that the protections for this type of testing are not as strong because the employer lacks the ability to observe potential employees in the same way that it can observe current employees. 

Random Drug Tests

In the state of California, employees’ right to privacy negates random drug tests by employers. Employers are required by law to provide both current and potential employees notice of intent to administer a drug test. There are a few exceptions to this rule, however, such as employees who hold public positions that may affect the safety of the public. For example, construction workers’ use of drugs may impact public safety, so it is generally agreed on by the courts that random drug tests are constitutional. 

Testing for Marijuana

Even though marijuana has been legalized in California for quite some time, employers are permitted by law to test for its use among employees. Employees testing positive for marijuana can be terminated for that reason alone. This includes positive marijuana drug screens for individuals who are prescribed medical marijuana.  

Examples of Illegal Drug Testing

The courts generally seek a balance between the employer’s interests in regulating the actions of its employees and the employees’ unassailable right to their privacy. Because of the myriad of circumstances that can surround a specific case related to privacy and drug testing, the decisions of the court in this area of the law vary widely. Some examples of instances when drug testing may be illegal:

  • Drug testing some applicants but not all applicants. 
  • Requiring workers to pay for their own drug tests.
  • Intruding on the worker’s right to privacy in a manner that is needlessly invasive. 
  • Failing to make reasonable accommodation for workers who are involved in drug or alcohol rehab programs. 

Plaintiffs who have been subjected to illegal drug testing by an employer are best served by working with an experienced employment attorney who understands the nuances of the state’s constitution. Reach out to the team at Sessions & Kimball to weigh the legal merits of your case.