How do I implement a random drug testing policy?

California is very sensitive to individuals' right to privacy, and the state constitution places strict restrictions on drug testing.

Random drug testing, which is when an employer informs employees they may have to submit to a drug test at any time, for any reason or no reason at all, is extremely limited in California and generally not permitted.

Random drug testing has been upheld in specific narrowly defined job classifications, such as drivers of large trucks under Department of Transportation guidelines and aviation personnel.

These exceptions have been tested by case law in California, and random drug testing is not allowed in other fields. Indeed, one case held specifically that safety is not a compelling reason for testing employees on a random basis (See Luck v. Southern Pacific Transportation Co., 218 Cal.App.3d 1 (1990), cert. denied, 111 S.Ct. 344 (1990)).

California law does allow "reasonable suspicion" drug testing within narrow guidelines, however, if there is a concern about drug usage in the workplace.

Additionally, employers should be aware that, effective January 1, 2024, California prohibits discrimination on the basis of an applicant’s or employee’s off site and off-duty use of cannabis. Employees may still conduct drug testing for cannabis, but the test must be a valid screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.

Employers who are considering any type of drug testing program should consider working with legal counsel to implement these policies.