Drug testing implicates the California right to privacy, which is enshrined in our Constitution. Therefore, employers must be careful when drug testing is a component of their onboarding process.
The General Rule
A private employer in California can require a job applicant to pass a pre-employment drug test as a condition of employment, regardless of the job position, as long as all applicants are subject to the same requirements. Pre-employment testing is not grounded in any suspicion that the job applicant actually abuses drugs. Indeed, the California Supreme Court has found just the opposite. When done correctly, pre-employment “suspicionless” drug testing does not violate the privacy rights of a job applicant because, unlike a current employee, the potential employer has not had an opportunity to observe the candidate’s work habits for indications of substance abuse. Moreover, by applying for a job, the applicant is voluntarily choosing to reveal personal information in conjunction with the application.
Briefly noted, drug testing of job applicants is permissible as long as the following conditions are met:
- Notice: Applicants receive prior notice that a drug test will be required. The job posting materials should clearly state that passing a drug test is a condition of employment.
- Consent: It is a best practice to have the applicant consent in writing to the fact of testing and the procedures to be used.
- Reasonable Process: The collection process should minimize intrusiveness and must be administered in a reasonable and reliable fashion.
- Protected Results: Procedural safeguards must be in place to restrict access to the test results. Multiple candidates’ results may not be compiled together. Nor may a particular candidate’s results be widely distributed.
Timing of the Test
Timing of drug testing is also important. As a general rule, a pre-employment drug test should occur (and the results reviewed) prior to the date the applicant is hired and begins working for the employer. Doing so removes any confusion regarding whether the applicant should be afforded the greater privacy protections afforded current employees.
Drug tests of current employees generally must be supported by reasonable suspicion of drug use prior to the administration of such tests. Random testing is permissible pursuant to a federal mandate (e.g., DOT agency regulations) or if an employee occupies a safety-sensitive position in which a mis-performed duty could have irremediable harmful consequences.
Medical Marijuana In The Golden State
But what if an applicant uses medical marijuana lawfully in the State of California? A prescription for medical marijuana may protect a person from state criminal prosecution. But, it does not impose an obligation on an employer to accommodate a potential employee’s use of medical marijuana, even when ingested or smoked only away from the workplace.
Workplace Solutions: Pre-employment testing is generally permitted if the rules sketched out above are followed. However, the devil is in the details. If you have, or are planning to have, a pre-employment testing program, make sure your notices, consents and procedures are reviewed by an expert. And, once an employee is hired, drug testing should be limited to situations where an employer has reasonable suspicion the employee is using or under the influence of illegal drugs or alcohol while working. Post-accident testing may be permissible in situations where an employee has caused significant damage to company vehicles, equipment, machinery or other property or a serious injury to himself/herself or another individual. Random testing should be limited to employees who are in safety-sensitive positions. Finally—at least so far—it is not discriminatory in the Golden State to refuse to hire an applicant or discipline an employee because he/she tests positive for marijuana, even if the individual has a medical marijuana card. The use and possession of marijuana remains illegal under federal law.