California Drug Testing Laws: Employee Rights and Employer Rules

California drug testing laws shape employee privacy, cannabis screening, pre-employment checks, and employer workplace testing limits. Review rules for random testing, reasonable suspicion, rehabilitation, transportation, and drug-free workplace policies.

By Brad Nakase, Attorney

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Table of Contents

1. Introduction

2. California’s policy regarding drug and alcohol testing

3. California’s pre-employment drug testing regulations

4. Regular or random drug testing

5. Screening for Reasonable Suspicion

6. Public Employers and Drug Testing

7. Drug Testing in Private Companies

8. Changes to California’s drug-testing laws

9. What options are there for employers?

10. Local drug testing ordinances

11. Drug & Alcohol Screening in the Transportation Industry

12. Drug Abuse & Discrimination Against People with Disabilities

13. Drug or Alcohol Rehabilitation

14. Regulations for Drug-Free Workplaces

15. Drug-Free Workplace Act: California

16. Drug-Free Workplace Act: Federal

Introduction

Employee drug testing is legal in California, but it can only be defended in extremely narrow circumstances. This balance is maintained by the structure of California’s pre-employment drug testing rules.

California’s policy regarding drug and alcohol testing

California’s laws governing drug and alcohol testing create a balance between employers’ demands & employees’ right to privacy.

California’s drug-testing laws are based on a number of variables and are supported by experience and facts. Drug testing can’t, therefore, be deemed wholly unlawful. However, there are instances when businesses violate employees’ rights by performing specific drug test-related acts.

These actions could consist of:

Conducting the exam in a manner that violates employees’ rights
Choosing to test some staff but not others
Making mandated drug testing payable for employees
Disregarding the requirements of workers undergoing drug or alcohol treatment

Assume that a business routinely tests one employee for drugs but does not test the other employee. Both individuals play the identical roles. In that scenario, it might be determined that the company’s conduct was illegal. Additionally, when it pertains to drug testing, some companies violate their rights under federal law.

California’s pre-employment drug testing regulations

Pre-employment drug testing rules in California allow an employer to request a “suspicion-less” drug test after a job offer but before the individual begins work. Pre-employment screening is more challenging when it comes to marijuana and cannabis.

Discrimination against job applicants & employees on the basis of their personal and off-duty cannabis use is prohibited in California. Employers are still allowed to conduct pre-employment testing. They have to use trustworthy tests that only look for the psychotropic components of cannabis.

Regular or random drug testing

Unless there are certain, restricted circumstances, employees might not be obliged to give their permission to random drug testing.

Screening for Reasonable Suspicion

The courts have generally accepted the demand for alcohol or drug testing in the workplace based on particular objective facts and reasonable inferences that may be drawn from that evidence that indicate drug or alcohol abuse. However, this information and deductions might not be enough to prove obvious probable cause under California’s pre-employment drug testing requirements. The courts have authorized employee testing in the wake of a major accident.

Public Employers and Drug Testing

The California Supreme Court ruled that governmental organizations are allowed to mandate pre-employment drug testing. They are not allowed to test current employees seeking promotions, though.

Drug Testing in Private Companies

The court also considered the right to privacy & drug testing under the state Constitution while making a decision that would apply to private companies.

Changes to California’s drug-testing laws

Assembly Bill 2188 (AB 2188) amends the California FEHA. Employers with five or more employees must demonstrate that a worker’s purported cannabis use had an impact on their productivity. They are unable to penalize any employees or candidates without that.

The law prohibits employers from treating employees unfairly or punishing them in any manner in a few cases.

A candidate or worker who isn’t on the clock is using cannabis.
The drug test finds non-psychoactive cannabis metabolites.

What options are there for employers?

When it comes to drug tests that address a worker’s “current impairment” or whether they’ve activated cannabis metabolites, employers have the power to make hiring decisions. This also applies to individuals who choose to use cannabis at work. Such use could have serious repercussions. Termination, disciplinary measures, & other sanctions.

The main component of cannabis that can result in euphoria & signal impairment is tetrahydrocannabinol. It is processed and stored as a non-psychoactive metabolite following consumption.

This means that employers must use “scientifically competent pre-employment drug testing” in place of screening for non-psychoactive marijuana metabolites.

These methods include:

Oral saliva drug test
THC breathalyzer drug test
Blood test for drugs

Additionally, the Department of Transportation’s and other federal and California’s drug-testing laws requiring controlled substances testing for workers or job candidates are not superseded by this bill.

For these employees, urine drug testing is still an option.

Employers must revise their drug-testing policies because of this new regulation and the end of the year.

Employers must either discontinue their pre-employment cannabis testing initiatives based on urine or switch to one of the other approved drug testing methods (oral saliva, blood, or THC breathalyzer).

Before testing starts, it’s critical to set a clear threshold.

For instance, pre-employment testing may only be necessary for positions that are safety-sensitive. Workplace safety is the first priority for ethical companies. Substance users are three times more likely to be engaged in workplace accidents and nearly five times more likely to damage themselves at work. It should be evident from a company’s drug-testing policy which jobs are critical to worker safety.

You may decide that pre-employment testing is not required, but you can also hold an employee responsible if they cause an accident at work. You can simply state that being high at work is not acceptable. All employees should be forced to undergo a post-accident or suspected drug test when an accident occurs, or drugs are found at work (subject to your policy).

Employers must make sure that any modifications to their policies adhere to federal, state, & local regulations.

Local drug testing ordinances

In San Francisco, a local ordinance regarding employee drug testing was passed. You may wish to consult a lawyer before employing San Francisco employees to conduct drug tests.

Drug & Alcohol Screening in the Transportation Industry

Federal/state laws have strict requirements for drug & alcohol testing for employers engaged in commercial transportation. Employers and independent operators who violate these California drug testing laws can be heavily fined. This is one of the few places where California’s pre-employment drug testing regulations significantly coincide with federal requirements.

Drug Abuse & Discrimination Against People with Disabilities

The federal ADA and the California FEHA do not provide protection for those who currently abuse drugs or alcohol. However, persons who have been able to recover from alcohol or drug abuse—either through an autonomous program or a supervised program—and who are no longer misusing illegal drugs or alcohol are protected by these restrictions.

Drug or Alcohol Rehabilitation

If you have over twenty-five employees, you must make the necessary arrangements for any employee who offers to participate in a drug or alcohol rehabilitation program, provided that doing so does not put an excessive burden on your business.

Regulations for Drug-Free Workplaces

You may choose to create a standard for your workplace. You can also include a drug-free workplace language in the employee handbook. This is irrespective of whether your employees are bound to state or federal drug-free workplace legislation. Cannabis usage for recreational purposes is now legal for adults twenty-one years of age & older. California also allows the use of medical marijuana. A doctor’s certificate is required.

Marijuana is now permitted for both medical and recreational use. Employers in California can still maintain their drug-free work policy. A drug-free workplace policy built on a set of guidelines is important. It will help you make sure your policy is equitable, open, & consistent.

Drug-Free Workplace Act: California

You must certify that you provide a drug-free workplace under the state’s Drug-free Workplace Act. It is mandated when you enter into a contract with the state or receive grants from it. Employers have to abide by California’s drug-testing laws (pre-employment). They can promote ethical workplace practices & shield themselves from liability.

Drug-Free Workplace Act: Federal

If you receive any government funding or sign a government contract for the procurement of goods or services valued at $100,000 or more, you must follow the regulations of the Drug-Free Workplace Act.

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California Drug Testing Laws: Employee Rights and Employer Rules

Introduction

California’s policy regarding drug and alcohol testing

California’s pre-employment drug testing regulations

Regular or random drug testing

Screening for Reasonable Suspicion

Public Employers and Drug Testing

Drug Testing in Private Companies

Changes to California’s drug-testing laws

What options are there for employers?

Local drug testing ordinances

Drug & Alcohol Screening in the Transportation Industry

Drug Abuse & Discrimination Against People with Disabilities

Drug or Alcohol Rehabilitation

Regulations for Drug-Free Workplaces

Drug-Free Workplace Act: California

Drug-Free Workplace Act: Federal

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