Like so much of California employment law, the limits on an employer's ability to drug test are not well defined.
- The ability to test applicants is relatively unfettered. You can test applicants after you've offered the job, but before they start work.
- If you have a reasonable suspicion that the employee is using illegal drugs, and something objective to support the suspicion, courts will generally allow you to test.
- In some industries, such as transportation, there are specific testing requirements.
- Here's where the uncertainty creeps in: The ability to randomly or routinely test current employees depends on a balancing test. You balance the employees' privacy interests against the employer's need to test.
Balancing tests are logical and easily explained. What they aren't is helpful. How confident can you be that the conclusion you reach will be the same one reached by a judge, jury, or arbitrator? And even if you're right, are you willing to spend the money it takes to get to that point if the issue gets litigated?
I'm bringing up this this issue in response to this post by Earl Phillips in his British Columbia Employer Advisor discussing Canadian employers frustrations with their drug testing laws. There you can't test applicants and generally can't test employees unless there's a reasonable suspicion, they're returning from rehab, or there's been some incident.
Usually, this is the point where I complain that it's hard for employers trying to comply with the laws of one jurisdiction, much less the conflicting laws of multiple jurisdictions. But I'm in too good a mood following the Giants win in Game 1 of the World Series.
So continuing that optimism, I'll instead wonder aloud whether there are real opportunities here to transfer applicants and employees to whichever jurisdiction allows the testing the employer wants to conduct. Then the reader can wonder (hopefully not aloud) whether anyone suggesting such a thing ought to be drug tested.