If you are considering requiring your employees or prospective employees to submit to workplace drug and alcohol testing, you would be well advised to know how far your rights as an employer extend under both federal and California law.
Drug testing in California
At the state level, the California Constitution guarantees a right to privacy for all employees. Drug testing may affect this right, but that does not mean workplace drug testing is always off limits for the employer. Indeed, case law in California (as it relates to drug and alcohol testing) is not yet settled and you would be well-advised to discuss your business’s specific needs with an experienced employment attorney.
As California does not have a standard workplace drug testing procedure or protocol, courts will determine whether a test was properly performed by balancing the employer’s reason for testing with the employee’s expectation of privacy. In California, current employees have a stronger expectation of privacy than applicants. Indeed, the employee has the job and a work history the employer can use to evaluate performance; two factors that may weigh against the employer in choosing to perform a drug test on the employee. By contrast, a job applicant has a weaker expectation of privacy and thus the employer may be able to show a compelling reason for testing.Details