When Can an Employer Require Drug Testing?

Pursuant to California law, drug testing in the workplace is permitted under certain limited situations. However, because the courts are concerned about unreasonable intrusions into an employee’s privacy, they look to a number of factors and circumstances in determining if a particular drug testing program is lawful, including pre-offer versus post-offer testing, prospective versus current employee status, the reasons for the test, the type of test to be administered, and the job duties of the employee who will be tested.  Because drug testing can raise serious privacy issues regarding employees, employers should exercise caution in adopting drug testing programs and consult with an attorney before instituting any such policy. In addition, any drug testing program should be detailed in the employee handbook. The following is a general review of the circumstances under which drug testing is permissible under California law.

• Pre-Employment Drug Testing

A job applicant may be required to submit to a drug screening test as a condition of employment.  However, to ensure compliance with the Americans with Disabilities Act, an employer should only require a drug test when a conditional offer of employment has been made to the employee and a signed consent form should be obtained prior to the drug testing. The employer should also wait for the drug test results before allowing the prospective employee to begin working.  Reliable and up-to-date testing methods must be used and the drug testing should be conducted in such a manner as to ensure confidentiality.  The particular circumstances under which such drug testing will occur, including the facility to be used and the exact nature of the testing, should be detailed in the employee handbook.

• Random Drug Testing

Random drug testing refers to situations in which an employee is required to submit to testing at any time during the course of their employment, with no specific reason for the drug testing required. Such testing is not allowed under California law, except for employees working in positions critical to public safety (such as public transportation) or to the protection of life, property or national security; these employees are known as “safety-sensitive employees.”   If an employee’s job duties do not directly impact public safety, then the employee cannot be subjected to random drug testing. The federal Omnibus Transportation Testing Act regulates drug testing for safety- sensitive employees in occupations such as aviation, rail and mass transit.

• “Reasonable Suspicion Drug Testing”

In California, the courts have held that an employer may have a compelling business interest in ensuring a drug free workplace. Thus, if an employer observes sufficient objective factors (e.g. slurred speech, lapses in performance, inability to respond to questions) , which indicate that an employee may be under the influence of illegal drugs or alcohol while performing his or her duties, the employer may require the employee to undergo a drug screening test. However, it is good practice to have two trained supervisors make this determination because the employer must be able to prove actual reasonable suspicion or face liability for violation of the employee’s privacy. Again, the ability of the employer to require drug testing under these circumstances should be detailed in the employee handbook.

• Post-Accident Drug Testing

In California, courts have upheld drug testing following a serious work- related accident, where the employer has a reasonable suspicion that the employee involved in the work-related accident was under the influence of illegal substances or alcohol. Again, the circumstances in which such testing might occur should be detailed in the employee handbook. Any workplace drug testing must be conducted in a non-discriminatory manner, and in a manner that ensures the privacy and confidentiality of the employee. However, if administered properly, workplace drug testing programs can provide a valuable tool for employers to use in their efforts to ensure and maintain a drug free workplace.

BOBrien