Although drug testing of employees is allowed in California, it may be justified only in very limited and strictly defined circumstances.
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 begins working.
You may not require employees to submit to random drug testing, except under certain narrowly defined circumstances.
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.
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.
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.
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.
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.
The federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) do not protect individuals who currently use drugs or abuse alcohol. 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 or abuse alcohol.
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 your business.
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. Proposition 64, the Adult Use of Marijuana Act, legalized the recreational use of marijuana for adults 21 years old and over. California also allows medical marijuana use with a prescription.
Even though recreational and medical marijuana are now legal, California employers still maintain the right to enforce a drug-free workplace policy, including prohibiting marijuana. If you include a drug-free workplace policy, there are a set of guidelines that can help you keep the policy fair, clear and consistent.
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.
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.
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 substance abuse-related performance problems—and have failed to correct them when identified—a last chance to improve their performance before termination.
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With 2019 comes a host of new California employment laws that take effect on January 1 and beyond.