Seyfarth Synopsis: California employers may not require employees to submit to random drug testing, except under very limited circumstances.

California public policy, stated in our Constitution, strongly favors the right of privacy. But employers have their own legitimate interest in maintaining a safe, drug-free work environment. So what’s the blunt truth about random drug testing in California?

As we blogged on April 12, 2017, California voters gave an enthusiastic, yet relaxed green thumbs up to recreational use of marijuana with the passage of Prop 64, but Prop 64 recognizes an employer’s right “to enact and enforce workplace policies pertaining to marijuana.” This development sparks important questions about best practices and policies to implement regarding workplace drug use and random drug testing, including how employers can best reduce the risk of litigation, and whether anything has changed in the wake of legalized marijuana. The short answer is that these rules remain the same as they were.

Way back when, in 2008, the California Supreme Court held that employers need not accommodate an employee’s medicinal marijuana use. And it remains the practice for many employers to enforce drug use policies specifying that the employer has a zero tolerance toward working under the influence of drugs, including newly legalized substances such as THC (the active ingredient in marijuana). Unambiguous drug use policies will put even the most dazed and confused employees on clear notice that these “legalized” substances are not tolerated at the workplace.

Under what circumstances may a California employer conduct a lawful random drug test?

Here’s the rub: California employers may have a legitimate interest in enforcing a drug free workplace, but our Constitutional right to privacy generally protects against a random, suspicionless drug tests. Because an employer’s right to drug test relies on a balancing test (is the employee’s privacy interest outweighed by the employer’s interest in keeping the workplace safe and drug-free?), courts commonly look to whether there are less intrusive ways than random testing to protect the employer’s interest, and typically determine that there are.

There are a few exceptions to this general rule. First, certain federal authorities require California employers to establish a controlled substances and alcohol testing program that includes random testing. This requirement essentially snuffs out the employee’s privacy interest. Federal authorities imposing such a requirement include the Department of Transportation, Federal Motor Carrier Safety Administration, Federal Railroad Administration, Federal Aviation Administration, Federal Transit Administration, Pipeline and Hazardous Materials Safety Administration, and United States Coast Guard.

Absent a federal legal mandate to conduct random testing, a California employer may engage in random testing only if the employer can make a strong case that an employee works in a safety-sensitive position and, if allowed to work under the influence of drugs, would pose some imminent safety or health threat with irremediable consequences. Note though that this is a very difficult standard to meet. Employees in the few positions that have presented such a threat have included nuclear power plant workers, correctional officers, hazardous pipeline employees, government employees with secret national security clearances, aviation personnel, and civilian employees at a chemical weapons plant. Working in those positions while under the influence could have dire consequences for these employees and everyone around them, thus causing the employer’s and the public’s interest to outweigh that of the buzzed employee.

Bay Area employers should also note that California rules come with an unusual, perhaps unsurprising, caveat: San Francisco has long restricted the drug testing of employees, and has even passed a local ordinance declaring that “[u]nder no circumstances may employers request, require or conduct random …blood, urine or encephalographic testing.” Therefore, unless this requirement is preempted by the federal mandates described above, San Francisco employers should avoid random testing.

What are the liability risks and resulting penalties?

California views the individual’s right to privacy in the strongest of terms. Conducting an unlawful random drug test of an employee creates significant risks for the employer, including claims for invasion of privacy or wrongful termination in violation of public policy if an employer takes action based on the employee’s refusal to take the test. Given the risk of litigation exposure, employers should steer clear of any random drug tests of current employees, unless the employer is confident that federal law authorizes the random drug test or unless the employee is truly performing a safety-sensitive role.

A reminder for workplace solutions.

As marijuana use for medical and recreational use becomes more prevalent, employers should assess their written policies, job applications, background check procedures, and interview materials—especially nationwide companies using form documents—to ensure compliance with California’s unique drug testing laws.