Employee Drug & Alcohol Testing
Although drug testing of employees is allowed in California, it may be justified only in very limited and strictly defined circumstances.
Pre-employment and Immediately After Employment Testing
California law allows an employer to require a "suspicionless" drug test as a condition of employment after a job offer is tendered but before the employee goes on the payroll.
Routine or Random Drug Testing
You may not require employees to submit to random drug testing, except under certain narrowly defined circumstances.
Reasonable Suspicion Testing
The courts have generally been supportive of requiring alcohol or drug testing based on specific objective facts and rational inferences drawn from those facts that indicate drug or alcohol abuse, although these facts and inferences may fall short of clear probable cause. The courts have clearly upheld testing of employees after a serious accident.
Public Employers & Drug Testing
In a 1997 case, the California Supreme Court refused to allow drug testing to the City of Glendale' s current employees who were applying for promotions, but did allow drug testing of applicants.
Private Employers & Drug Testing
In the case cited above, however, the court also considered drug testing and the right to privacy under the state Constitution in its decision, which would apply to private employers. In a 1994 California Supreme Court case, the court considered the privacy rights of college athletes being randomly tested for drugs by an intercollegiate athletic association.
Local Drug Testing Ordinances
San Francisco enacted a local ordinance relating to subjecting employees to drug testing. You may want to consult legal counsel before engaging in drug testing of employees in San Francisco.
Transportation Industry Alcohol and Drug Testing
Both state and federal laws impose strict requirements on employers and operators engaged in commercial transportation, with respect to alcohol and drug testing. Failure to comply with these regulations can result in significant penalties both to employers and to individual operators.
Disability Discrimination and Drug Abuse
The federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) do not protect individuals who currently use drugs. However, these laws do protect persons who are former abusers of alcohol or illegal drugs and who have been successfully rehabilitated either through a supervised rehabilitation program or through their own program, and who no longer use illegal drugs.
Drug or Alcohol Rehabilitation
If you have 25 or more employees, you must reasonably accommodate any employee who volunteers to enter an alcohol or drug rehabilitation program, provided the reasonable accommodation does not impose an undue hardship on you.
Drug-free Workplace Policies
Whether or not your employees come under the requirements of state or federal drug-free workplace regulations, you may choose to create a drug-free workplace policy and/or include a drug-free workplace provision in your employee handbook. If you do so, there are a set of guidelines that can help you keep the policy fair, clear, and consistent.
California Drug-free Workplace Act
If you contract with or receive grants from the state of California, California's Drug-free Workplace Act of 1990 requires you to certify that you provide a drug-free workplace.
Federal Drug-free Workplace Act
If you enter into a federal contract for the procurement of property or services valued at $100,000 or more, or if you receive any federal grant, you must follow the regulations of the Drug-Free Workplace Act of 1988.
Wrongful Termination and Drug Testing
California courts have developed at least three wrongful termination theories, which employees who have been terminated for refusing to submit to drug testing can use as a basis for lawsuits.
HRCalifornia subscribers have access to several tools and services that help those who manage human resources to work through Drug and alcohol-related issues, including:
Use this checklist when creating a Last Chance Agreement to give employees that were once productive and valuable but have developed recent performance problems—and have failed to correct them when identified—a last chance to improve their performance before termination.