California Drug Testing Laws: Pre-Employment Drug Testing

California state laws regarding drugs are complex and constantly changing. It's important for employers, employees and applicants alike to understand their rights regarding jobs and drug testing. While the laws on this subject are not completely settled, a detailed look at previous court rulings and current laws can help all parties make informed decisions.

The federal laws that govern all people in the United States do not explicitly prohibit or encourage employers to drug test applicants or employees. Instead, federal laws leave decisions about pre-employment drug testing up to the states.

Federal regulations, however, do lay out drug testing guidelines for employees of the federal government. Many agencies within the government require candidates to submit to drug tests before they can begin work. This is particularly common in positions that require secrecy or deal with security.

These federal jobs guidelines apply to people in every state. Therefore, Californians should expect to submit to drug tests in the final stages of obtaining jobs with the federal government. Other workers and employers in California are subject to state laws.

The state's constitution lays the groundwork for many of California's drug testing laws. The Golden State is one of the few jurisdictions to explicitly name privacy as an inalienable right for its citizens. As such, California employers must allow applicants and employees their due privacy.

That doesn't mean that employers can never ask job candidates to submit to drug tests. Instead, California courts have found ways to balance the right to privacy with the desire for employers to create drug-free workplaces. The continuous search for this balance often results in lawsuits that change the legal landscape.

There are several circumstances in which employers may want to submit people to drug tests. The first of these is in the pre-employment phase. Pre-employment drug testing occurs when an employer is considering hiring a job candidate and makes a clean drug test part of the hiring requirements.

Some employers also want to routinely drug test their employees in order to monitor for drug use. Finally, other businesses do not routinely subject their employees to drug tests, unless they have a reasonable suspicion of an individual.

In general, California courts treat pre-employment drug testing with more leniency than testing people who have already been hired. That's because employees who have already established relationships with businesses have a higher expectation of privacy than candidates who are seeking employment. But there are cases in which each type of drug testing can be legal.

In order to lawfully test job candidates, employers should abide by certain guidelines. First and foremost, employers must drug test all of the candidates they consider for a position. Otherwise, they may open themselves to discrimination lawsuits.

Employers should never single out applicants to take drug tests based on legally protected characteristics, such as gender, race or disability. Employers may consider these protocols to protect themselves:

• Give applicants plenty of warning prior to the date of the drug test.
• Make a job offer contingent on the applicant having a clean drug test.
• Work with testing agencies that offer suitability ratings instead of detailed medical information.
• Ensure that the drug tests are conducted in private environments with medically trained staff.

While these precautions cannot guarantee that a lawsuit will not happen, they can help employers defend themselves in the case of such a suit. The idea is to balance the applicant's right to privacy with the employer's desire for drug-free hires.

In 1996, voters in California chose to legalize medicinal marijuana. Approximately 20 years later, the state legalized personal marijuana use as well with the Adult Use of Marijuana Act. These changes have raised questions for employers and job seekers alike.

As of 2019, California courts have upheld the right of employers to refuse to hire someone who tests positive for marijuana use. Employers may screen for marijuana use even when an applicant has a prescription for the substance to help manage a medical problem.

Read More: California Marijuana Workplace Law: Employee Testing & Requirements

With the exception of marijuana, employers cannot refuse someone a job based on medications they take for a disability. It's important to note that some prescription medications show up on drug tests because they are illegal when taken without a prescription. For example, drug testing may find opiates in an applicant's system.

If the person has a prescription for opiates because of a documented disability, the employer cannot deny the person a job based on the drug test. However, the employer can refuse to hire applicants that do not have such prescriptions and yet test positive for opiates. Medical marijuana continues to be an exception to this rule because it remains illegal under federal law.

In some cases, applicants or employees may bring lawsuits against companies that utilize drug tests. Typically, such a lawsuit may be based on one of four claims:

• Invasion of privacy.
• Defamation.
• Discrimination of a protected class.
• Disability discrimination.

For example, an applicant may sue a company for invasion of privacy if the business wants to see full results of the drug test, rather than simply issuing a suitability rating. Furthermore, California courts believe that current employees have a broader expectation of privacy than do job applicants, so current employees that are required to take drug tests may sue on these grounds.

Defamation lawsuits may come as the result of an employer publicizing the results of a drug test that may not be accurate. Applicants may sue based on discrimination if an employer drug tests people based on gender, race or age. Similarly, employers who violate the Americans with Disabilities Act may be found liable in court.

While pre-employment drug testing is often acceptable under California state law, routine drug testing of existing employees is a more difficult issue. Because employees already have a work history with the organization, they enjoy a higher expectation of privacy. As such, employers should take precautions before subjecting employees to routine drug testing.

One way that employers can protect themselves from liability is to have a written policy to which all employees consent when they get hired. This policy should outline expectations for drug testing. Employers should work with knowledgeable lawyers to craft these policies.

Organizations should also take steps to keep employees' privacy intact whenever possible. For example, they should continue to use suitability ratings as they would with pre-employment tests.

Some companies subject employees to drug tests out of preference, but others must create drug-free work environments to keep everyone safe or to comply with laws. For example, federal and state laws require commercial transportation companies to monitor drivers for drug and alcohol use. In this case, safety supersedes the driver's right to privacy. Other employers that may require routine testing include:

• Nuclear power plants.
• Airlines.
• Law enforcement agencies.
• Anyone who works with hazardous materials.

The California Drug-Free Workplace Act of 1990 requires any company that contracts with the state government to certify that the workplace is free of the influence of drugs and alcohol. Part of creating a drug-free environment may be subjecting employees to routine drug tests.

Similarly, the federal Drug-Free Workplace Act of 1988 requires certain organizations to create drug-free work environments. This regulation applies to any company or nonprofit organization that receives a contract or a grant from the federal government worth at least $100,000.

What happens when an employee starts exhibiting behaviors that make the manager suspect drug use? Can the employer subject the employee to a drug test as a condition of continued employment? The answers depend on whether the employer's belief meets the legal standard of reasonable suspicion.

California courts have ruled that an employer may have reasonable suspicion if the employee:

• Exhibits a pattern of unusual and erratic behavior or is seen consuming drugs at work.
• Has symptoms of intoxication at work.
• Is charged with a drug-related offense during the time of employment.

An employer may also reasonably suspect an employee of drug use if an accusation comes from a reliable source. Finally, if there is evidence that an employee or a job applicant has tampered with a drug test to alter the result, this may be cause for conducting another test.

Not only do employers need to abide by federal and state laws, but it's also important to consider regulations in some municipalities. While many counties and cities do not have laws about drug testing employees, a few do. San Francisco is one such example.

The city's laws prohibit employment drug testing except in specific circumstances. The law aims to protect every person's right to privacy when off duty. Therefore, employers may drug test only if all of these conditions apply:

• The employee shows signs of impairment while on duty.
• The person's apparent impairment is a danger to themselves, coworkers or the general public.
• The employer pays for a drug test at a facility that the state licenses.
• The organization gives the employee adequate opportunity to refute or explain the results of the test.

San Francisco law also specifically prevents organizations from conducting random, company-wide drug tests. Employees who believe a company has violated these laws can bring a civil lawsuit against the organization.

If an applicant fails a drug test, meaning that the test shows recent drug use, the organization can refuse to hire her on this basis. However, hiring managers may wish to give such applicants opportunities to explain the results. For example, a person with a disability may have a prescription for an opiate and fail the drug test. Not hiring such a candidate could result in a lawsuit.

What about current employees who fail drug tests? While California law protects people from being fired for legal off-duty conduct, courts have generally not applied this law toward the use of marijuana because the substance is illegal under federal law. It also does not apply to the use of illegal drugs.

If and when federal law changes to allow marijuana use, things may change regarding drug tests. At this point, employers may need to treat cannabis use more like alcohol when it comes to hiring and firing decisions. However, it remains legal to fire someone for marijuana use as of 2019.