Question: My company is considering implementing a drug-testing policy for employees and applicants. Can my business require drug and/or alcohol testing for employees or applicants?
Answer: Yes, there are circumstances in which employers can require drug and/or alcohol testing. However, employers should be careful of the legal restrictions around imposing these types of programs.
California places significant limitations on drug testing. Additionally, the California Constitution also guarantees an individual’s right to privacy. This means that California courts balance an employee’s reasonable expectation of privacy against an employer’s legitimate interests, such as workplace safety, in requiring the test. As a result, employers should be aware of the limited instances in which testing can be imposed.
There are four general circumstances in which employers can require drug testing: (1) pre-employment screening, (2) reasonable suspicion testing, (3) post-accident testing and (4) random testing.
Pre-employment testing
Most employers in California can require job applicants to successfully pass a pre-employment drug test as a condition of employment. This type of testing is valid when consistently applied to all applicants.
However, California employers should be aware of the legal restrictions related to testing and requesting information related to cannabis use. For example, under the California Fair Employment and Housing Act, an employer may not refuse to hire someone based on a test result that only finds evidence of “nonpsychoactive cannabis metabolites.” A test that only finds evidence of nonpsychoactive cannabis metabolites only indicates that someone has used cannabis in the past — it is not evidence of being under the influence of cannabis. In practice, this means that employers must ensure that they or their vendors are using the drug tests that test for active use of cannabis. Additionally, California employers are prohibited from requesting information from an applicant relating to the applicant’s prior use of cannabis.
Reasonable suspicion testing
California employers can require an employee to submit to drug or alcohol testing based on “reasonable suspicion.” Reasonable suspicion requires specific objective facts and observations, such as direct observation of drug use or possession or physical symptoms of being under the influence of drugs or alcohol. Mere “hunches” likely do not rise to the level of reasonable suspicion. For example, an employee’s association with another employee believed to use drugs or alcohol does not provide an objective level of reasonable suspicion that would allow testing. Reasonable suspicion testing should therefore be limited to clear, objective suspicion.
Post-accident testing
California courts have found that post-accident drug testing is permissible when an employer has reasonable suspicion that an employee involved in a workplace accident was under the influence of drugs and/or alcohol or if the accident was serious or fatal. As discussed above, reasonable suspicion must be based on specific facts and observations.
Random testing
Random drug testing is only permissible in extremely limited circumstances such as employees in “safety sensitive” positions. For example, California courts have upheld random testing for truck drivers, gas pipeline workers and correctional officers with regular contact with prisoners.
Given the sensitive nature of drug testing and the complex restrictions around when employers can impose testing, employers are encouraged to carefully review their hiring and discipline practices as well as any drug-testing programs to ensure compliance with California law. Employers with questions about their drug-testing policies or programs should contact their labor counsel.
Marco Lucido is a lawyer with Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Email queries to mlucido@fentonkeller.com
