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.
Medical Marijuana in the CA Workplace
The issue of marijuana use and drug testing in the workplace is a particularly hot topic for Californians who are curious about the interplay of marijuana at the state and federal level. California has a “compassionate use” law, which means Californians must apply for a doctor’s written authorization in order to legally purchase and use marijuana in the State. This authorization protects the holder from being prosecuted for state crimes prohibiting marijuana use or possession. What a “positive” test result for marijuana means is not yet clear. At least one judge in California has affirmed the right of an employer to refuse to hire someone who tested positive for marijuana. It may yet be that marijuana and alcohol will be treated the same when it comes to testing.
Finally, employers need to be cautious about who and how they select for drug testing or risk potential invasion of privacy and/or discrimination claims, including disability claims under the ADA.
To discuss how to properly implement drug testing into your workplace, contact experienced employment attorney Drew E. Pomerance.