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Numerous states, including California, have passed drug testing laws. However, California is one of seven states whose constitutions also guarantee an individual’s right to privacy.1 This guarantee places additional restrictions on laws and regulations applying to alcohol and drug testing programs.
Although the courts have addressed the issue of drug testing, the right of private employers to test current employees for drugs and alcohol remains somewhat unsettled.
You may be permitted to conduct drug testing in five circumstances:
Consult with legal counsel before implementing any alcohol or drug testing or screening programs.
How To: Oversee Pre-Employment Drug Testing
Applicants or employees who currently use illegal drugs, marijuana or abuse alcohol are not protected under the state or federal laws protecting individuals with disabilities. Adopting and administering reasonable policies to prevent drug use, possession, or sale in the workplace does not violate the federal Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). For more information on the extent of any protections, including a discussion of medical marijuana use, see Drugs and Alcohol.
The following discusses each of these circumstances and the legal restrictions placed upon each type of testing.
This page contains the following information:
As a condition of hiring, most employers can require an applicant to successfully pass a pre-employment drug test.2 Suspicionless drug testing as a condition of hiring is valid when applied to all job applicants.3
Pre-employment drug testing, including testing for marijuana, is still permitted in California. Employers may deny employment if a drug test comes back positive, even if the applicant was legally using marijuana under the state’s Compassionate Use Act. Proposition 64, which legalized adult recreational use of marijuana, does not prohibit employers from continuing to test for marijuana use.
The new law provides that employers are able to conduct preemployment drug testing, and an employer can still refuse to hire someone based on test results, but only if the test is a valid preemployment drug screening that doesn't screen for non-psychoactive cannabis metabolites, which can stay in someone's system long after the psychoactive effects have worn off.5 This means employers will have to ensure their tests or the tests used by their service providers comply with this new requirement.
Additionally, the law also prevents employers from asking about an applicant's prior cannabis use or considering such information obtained when doing a criminal history background check unless the employer is allowed to consider the criminal history information under the state's Fair Chance Act. For more information on restrictions on criminal history information, see Restrictions on Obtaining Criminal History.
The new law won’t permit an employee to possess, be impaired by or use cannabis on the job, and it maintains employers’ rights and obligations in keeping a drug and alcohol-free workplace.6
The law won’t apply to employees in the building and construction trades and applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with federal regulations.
Employers with drug testing policies and practices should consult with their legal counsel and work with their testing providers to ensure they are compliant.
Even though pre-employment drug screening is permissible, it is a good idea to inform applicants in advance of a pre-employment drug test that marijuana will be tested and whether employment will be denied if the test comes back positive.
The Ninth Circuit Court of Appeals confirmed that job applicants undergoing pre-employment drug testing are not yet employees, and therefore not entitled to payment for the time and travel expenses to undergo testing.7
In Loder v. City of Glendale, the California Supreme Court addressed the issue of drug testing applicants and employees seeking promotions. In that case, applicants for employment as well as current employees seeking promotions were required to undergo urinalysis testing for drugs and alcohol. The court refused to allow the city to drug test current employees applying for promotions, but did allow testing of applicants.8
Though suspicionless drug testing must usually take place before employment begins, in Pilkington Barnes Hind v. Superior Court, a California Court of Appeal held that post-employment suspicionless testing can be permitted in limited circumstances.9 The case involved an applicant who was offered a job on the condition that he pass a drug test. Due to the complications of relocating his family for the new job, the future employee on two separate occasions requested and was granted a delay in the date for which the test was scheduled. The employee was placed on payroll, spent a few hours filling out hiring paperwork and then took four days off to find a new home. When the employee finally took the drug test and tested positive for marijuana, the employer withdrew the offer of employment.
The employee sued, claiming that because he had been placed on the payroll, he was no longer an applicant and, therefore, could not be subjected to a suspicionless drug test. The Court of Appeal held that:
... a job applicant, who requests and receives a delay in submitting to the employment drug test... until after the start of employment, may not evade the employer’s testing requirement post-employment on the ground the applicant thereby became an employee and is, consequently, immune from testing. In these circumstances, for purposes of suspicionless drug testing, the job applicant who caused the drug testing delay must submit to testing after the employment date. If the employee fails the test given in the brief period between employment and administration of the test, that employment, conditioned on passing the test which the employee delayed, may be terminated.
Although the issue is not yet determined in California, federal courts and some state courts have approved testing as part of annual or periodic physical examinations, particularly in union employment relationships governed by collective bargaining agreements.10 However, under the ADA and FEHA, the physical examination must be either part of a voluntary employee health program or job-related and consistent with business necessity.
If you choose to use drug testing in physical examinations, notify employees that drug and alcohol tests will be administered as part of the physical examination. Advise employees that you may take disciplinary action if they refuse to consent to a test. You can take disciplinary action if the employee refuses the test outright. However, under the California Confidentiality of Medical Information Act, you cannot take disciplinary action if the employee refuses to release any purely medical information obtained from the test.11 You can only ask a physician’s opinion about whether the employee is able to satisfactorily perform their job duties.
Random drug testing programs are those in which an employer informs employees that they may be required to submit to drug testing at any time during their employment for any reason or for no reason at all.
Cases upholding random drug testing are limited to those involving employees in the following situations:
For example, random testing has been upheld for truck drivers under the FHWA regulations,12 aviation personnel,13 and correctional officers having contact with prisoners.14
With these exceptions, random drug testing is not allowed in California. In Luck v. Southern Pacific Transportation Co., the court held that any intrusion into an individual’s privacy must be justified by a compelling interest. The court found that the employer’s concern about deterrence, efficiency, competency, a drug-free environment, rule enforcement and ensuring public confidence in the railway system were not compelling interests. Moreover, the court held that safety was not a compelling reason for testing the employee involved — a computer operator for a railroad who was not in a safety-sensitive position — and that her termination for refusing to consent to the test breached the covenant of good faith and fair dealing.15
In another California Supreme Court case, Hill v. NCAA, the court considered the privacy rights of college athletes being randomly tested for drugs by an intercollegiate athletic association. In a statement that sheds some light on the right of private employers to randomly drug test, the court stated:
We intimate no views about the legality of blanket or random drug testing conducted by employers, whether of current employees or applicants for employment, or by other kinds of entities. Employment settings are diverse, complex, and very different from intercollegiate athletic competition. Reasonable expectations of privacy in those settings are generally not diminished by the emphasis on bodily conditions, physical training, and extracurricular competition inherent in athletics.16
Based on this case, it is extremely risky to randomly test employees for drug use except in the unique circumstance in which an employee’s expectation of privacy might reasonably be diminished. You must now show that the invasion of privacy is justified because it substantially furthers one or more legitimate and important interests outweighing the employee’s privacy interest.
In California, random drug testing for security or safety positions may be allowed if the employee’s privacy interests are outweighed by the employer’s safety interests, including the employer’s interest in reducing risk of injury to co-workers. In Smith v. Fresno Irrigation District, the court found that a construction and maintenance worker’s duties were safety-sensitive because he operated power tools and heavy equipment in close proximity to co-workers and as part of a team performing dangerous work.17 Advanced notice of the drug test will also decrease the expectation of privacy.
Courts are generally supportive of requiring drug or alcohol testing based on specific objective facts indicating abuse — often called “reasonable suspicion.”
“Reasonable suspicion” has been defined by one court as something less than probable cause but more than mere suspicion. Reasonable suspicion requires further investigation and is based on facts and observations.18 Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion need not rise to the level of full probable cause. Evidence can include alcohol on the breath, lapses in performance, inability to appropriately respond to questions and physical symptoms of alcohol or drug influence.19
The right to drug test under the California Constitution is evaluated by balancing the employee’s reasonable expectation of privacy against the employer’s legitimate interests in imposing the test. If a drug test is not triggered by a reasonable belief that the employee is under the influence of drugs or alcohol, the employee may have a stronger reason to expect to maintain their privacy and therefore you may not have a right to demand the test.
In Kraslawsky v. Upper Deck, Inc., there was a factual dispute over whether an employer had reason to believe an employee was impaired, and evidence that the supervisors who requested the test bore the employee some personal animosity that could have affected their decision. The court found the existence of reasonable belief was relevant to determining the constitutionality of the employer’s drug test demand.
The court noted that without requiring an employer to exhibit reasonable belief for requesting a drug test, an employer would have free license to conduct random testing at any time.20
Courts have generally upheld post-accident drug testing where an employer has reasonable suspicion that an employee involved in the accident was under the influence of drugs and/or alcohol or if the accident was a serious one.21 Consistent with that concept, the U.S. Supreme Court upheld the Federal Railroad Association’s post-accident drug testing regulations even though the regulations did not require individual suspicion of drug use. 22
In Ables v. Shultz Steel Co., the California Unemployment Insurance (UI) Appeals Board ruled that positive drug tests can disqualify discharged workers from receiving unemployment compensation, if employees agree to the tests and the tests are scientifically accurate. The Board said that every employer and employee has a vital interest in its workplace being drug free. The Board added that it is the right of an employer or other employees to create and maintain a workplace free of illegal drugs.
The Board ruled that for purposes of the UI law, drug tests were permissible when employers have reasonable suspicion that an employee in an inherently dangerous occupation is impaired.23
Employees can also be disqualified from receiving workers’ compensation benefits based on drug test results. Under workers’ compensation laws, you are not liable for injuries that employees sustain while on the job, nor for the death of any employee if the injury or death was caused by alcohol intoxication or the unlawful use of a controlled substance.24
1. California Constitution, Article 1 sec. 1
2. Wilkenson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (1989)
3. Loder v. City of Glendale, 14 Cal. 4th 846 (1997)
4. Govt. Code sec. 12954(a)
5. Govt. Code sec. 12954(a)(1)
6. Govt. Code sec. 12954(b)
7. Johnson v. Winco Foods, LLC, 37 F.4th 604, 9th Cir. (June 13, 2022)
8. Loder v. City of Glendale, 14 Cal. 4th 846 (1997)
9. Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998)
10. See e.g., International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir. 1991); Amalgated Transit Union Division 1279 v. Cambria County Transit Authority, 691 F. Supp. 898 (W. D. Pa. 1988)
11. Civ. Code sec. 56.20(b)
12. International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir. 1991)
13. Bluestein v. Skinner, 908 F.2d 454 (9th Cir. 1990)
14. Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989); American Federation of Government Employees, AFL CIO v. Roberts, 9 F.3d 1464 (1993)
15. Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (1990), cert. denied, 111 S.Ct. 344 (1990)
16. Hill v. NCAA, 7 Cal. 4th 1 (1994)
17. Smith v. Fresno Irrigation District, 72 Cal. App. 4th 147 (1999)
18. City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla. Dist. Ct. of App. 1985)
19. Assoc. of Western Pulp and Paperworkers v. Boise Cascade Corp., 644 F. Supp. 183 (D. Or. 1986)
20. Kraslawsky v. Upper Deck, Inc., 56 Cal. App. 4th 179 (1997)
21. International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir. 1991)
22. Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)
23. Ables v. Shultz Steel Co. No. P-B-454 (1987)
24. Lab. Code sec. 3600