The state of California has enacted the California Drug Free Workplace Act of 1990 to promote workplaces free of illegal drugs. Employers in the state are required to provide a drug-free workplace and may do so by implementing a drug testing program. There are several considerations for employers when deciding whether or not to implement drug testing, including the type of business, the nature of the work, and state and federal laws.
Many employers choose to drug test as a way to ensure a safe and productive workplace. Drug testing can deter employees from using drugs, help identify those who are using drugs, and provide a mechanism for addressing drug use in the workplace. Drug testing programs vary in their scope and requirements, but typically involve urine or hair testing.
Testing Guidelines
Urine drug testing is the most common type of drug testing. It is generally less expensive than hair testing and can detect recent drug use. However, urine tests may not be able to detect drug use that occurred more than a few days prior to the test.
Hair drug testing can detect drug use over a longer period of time, but is generally more expensive than urine testing. Employers should consult with their attorneys or human resource professionals to determine which type of drug testing best meets their needs.
State and federal laws place some limitations on employers’ ability to drug test employees. For example, the Americans with Disabilities Act (ADA) prohibits employers from requiring job applicants to take a drug test unless the employer has a reasonable belief that the applicant currently uses drugs. The ADA also prohibits employers from using drug tests to screen out applicants with disabilities.
The California Fair Employment and Housing Act (FEHA) prohibits discrimination in employment on the basis of race, color, religion, sex, national origin, ancestry, physical disability, mental disability, medical condition (cancer or genetic characteristics), genetic information, marital status, sexual orientation, gender identity, gender expression, age (40 and over), or military and veteran status. The FEHA also prohibits employers from requiring job applicants to take a drug test unless the employer has a reasonable belief that the applicant currently uses drugs.
Employers should consult with their attorneys to ensure that their drug testing program complies with all applicable state and federal laws.
California Drug Testing Laws Without Restrictions
The following is a summary of California laws that allow employers to drug test employees and job applicants without restrictions. Note that these laws may be subject to change, so employers should consult with their attorneys or human resource professionals to ensure that their drug testing program complies with all applicable state and federal laws.
Specimens Tested
There are no specific restrictions. Testing examples may include hair, blood, urine, saliva, breathalyzer readings or sweat patches.
Conditional California Drug Testing Laws
An employer may only test an employee for the use of drugs if the employer has a reasonable suspicion that the employee is under the influence of drugs. This standard is based on specific, contemporaneous, articulable facts and observations concerning the appearance, behavior, speech or body odors of the employee.
An employer may require an employee to submit to a drug test as a condition of employment only if the employer has a written policy that includes:
– The types of tests that may be required;
– The circumstances under which testing may be required; and
– The consequences of a positive test result.
The policy must be distributed to all employees, and applicants for employment must be notified of the policy prior to being hired.
Recreational Marijuana
Even if an employee only uses marijuana while off the job, their employer may test for it and take disciplinary action if the test comes back positive. Employers maintain the right to keep a drug-free workplace, but they must do so without discrimination.
Medical Marijuana
California’s workplace drug testing rules do not impose or prohibit drug testing for medical marijuana. According to the Americans with Disabilities Act, those who have a doctor’s note proving their need for medical marijuana may be covered.
Substances Screened
At the very least, drug screening should test for Amphetamines and Methamphetamines, Cocaine, Marijuana or Cannabinoids (THC), Opiates (narcotics), and Phencyclidine (PCP) use.
Testing for Alcohol
An employer may test an employee for alcohol if there is a reasonable belief that the employee is intoxicated or poses a danger to themselves or others.
California Drug Testing Laws with Restrictions
The following is a summary of California laws that restrict employers from drug testing employees and job applicants.
Instant or POCT Testing
Testing must take place at a certified laboratory.
Random Testing
Random drug testing is prohibited in California. Before conducting drug tests, employers must notify all personnel, including prospective employees. The only people this law does not apply to are those in public jobs or whose safety is paramount.
Workers Comp
If an employee is injured and has a positive drug test, the employer can deny workers comp if they prove that:
1) the employee was intoxicated during the time of injury, and
2) The worker’s impairment caused the injury.
Laboratories
In order to be compliant with California drug testing requirements, certified laboratories must be used.
How Accurate are Drug Tests?
No drug test is 100% accurate. False positives and false negatives can occur for a variety of reasons.
False positives can occur when the test detects a substance that is similar to the drug being tested for. For example, over-the-counter cold medicines may contain ingredients that can cause a false positive result for amphetamines.
False negatives can occur when the test does not detect a drug that is actually present in the specimen. This can be due to several factors, including how long ago the drug was used, how much of the drug was used, and the potency of the drug.
If an employer suspects that an employee is using drugs, it is important to consult with an attorney or human resources specialist to ensure that the drug testing policy is in compliance with state and federal law. Additionally, it is important to make sure that the laboratory conducting the drug test is certified and reputable.
