Workplace Drug Testing Issues – California State Laws
These categories do not affect DOT-regulated drug testing. Government employers should always call for potential additional restrictions on employee drug testing.
San Francisco and Berkeley both have ordinances that restrict drug testing in several ways – call National Drug Screening or contact your attorney.
California employers should only conduct post-accident drug testing when they believe the individual caused or contributed to the accident.
Workplace Drug Testing Laws in California
| Drug Testing Issue | Status | Comments |
|---|---|---|
| Instant or POCT Testing | Allowed with caution | Use trained collectors and send all non-negatives to a lab for confirmation. |
| Drug Panels | No Restrictions | |
| Laboratory | Licensing requirements | Licensed laboratories required, SAMHSA certified laboratories highly recommended. |
| Medical Review Officer (MRO) | Not Required | It is highly recommended to reduce liability exposure. |
| Random Testing | Restrictions | It is restricted to safety-sensitive workers. |
California Drug Testing and State Law
California Court decisions since 1972 have made one thing clear – facts matter! Not all employers are alike, nor are all employees” jobs. The courts will examine the work environment as a whole, the specific duties of each job to determine the level of intrusion into the individual’s privacy interest, and whether it’s’ warranted. The greater the invasion of privacy, the more you’ll’ need to justify it: As you move from reasonable suspicion testing (the least intrusive) to random (the most intrusive), the risk of challenge increases. Therefore, the employer must be prepared to show significant justification for the intrusion (such as safety concerns).
No specific requirements but some limitations; having a written policy is strongly suggested based on constitutional realities.
- A local ordinance in San Francisco (and possibly Berkeley) may limit workplace drug testing, strongly advise no non-DOT testing in San Francisco and Berkeley unless documented reasonable suspicion or consult with an attorney.
- Random testing should be limited to safety-sensitive positions, clearly define these in a company policy.
- Address medical and recreational marijuana in company drug-free workplace policy.
- Workers” compensation law offers an intoxication defense.
- Unemployment law provides that an employee fired for a positive test or refusal to test may be considered fired for “misconduct.”
This chart is intended for informational purposes only and should not be relied upon for legal guidance. State and local law vary greatly; therefore, you are advised to consult experienced legal counsel during the design of your actual substance abuse testing program and with any questions that follow.