Employee Drug and Alcohol Testing

Employers want to know should I or shouldn’t I. There are many employers in California that would love to do a random drug and alcohol testing.  For years, random drug and alcohol testing has been all but dead.  With that being said drug testing is still a big issue so let’s spend some time and examine some of the issues involved.

Drug Testing

Drug Testing for Pre-Employment and New-Hires

 

  • Courts in California have given employers the right to test job candidates as long as there is an offer of employment if the job candidate passes the drug and alcohol testing.  This is important for employers to remember no job offer than no pre-employment drug and alcohol testing.
  • If you are going to do the drug, test new hires than make sure that you drug test all new hires. If you are drug testing new hires by positions in the company make sure that the positions that you do drug and alcohol testing for is tested every time that you offer a job.  The worst thing you can do is drug test one time and then stop, and start drug testing or a whim.
  • Make sure that you are drug and alcohol testing everyone; failing to test everyone when hired or for pre-hire could result in a lawsuit. In the state of California, employees have the right to privacy, and if drug testing is done wrong then you may have invaded the employee’s right to privacy.

What about California’s “compassionate use” law, which allows residents to use marijuana for medical purposes?

State law requires users to get a doctor’s written authorization to use marijuana. And if a California resident does get a doctor to prescribe marijuana this does not mean that an employer must hire the applicant even if a job was offered should the drug test come back positive.  This position has been upheld by the California Supreme Court.

Random Drug and Alcohol Testing Pros and Cons

California Courts look at a couple of issues to determine if the employer had a valid reason to drug test.  This is especially true if the employer wants to do random drug testing.

The employee’s legitimate expectation of privacy

The employee’s legitimate expectation of privacy. In addition, to the legitimate expectation of privacy, the courts feel that if an employee has been working for a company for a while, the employer has the work ethic and history to go off of thus making the need to do random testing unfavorable.

On the other hand, an employer who has a reasonable reason to suspect that an employee is using drugs in the workplace then the employer is safe to call for a drug test.

The reason that the employer feels the need to do random drug test

The courts will weigh the reason that the employer feels the need to do random drug test against the employee’s legitimate expectation of privacy.  This is a weighted scale for the employee.  However, the employer can balance the scales by making sure that the company establishes a non-expectation of privacy policy in their company handbook.

If an employer can establish that the employee has no right to expect privacy, by establishing a very well written policy that will help to protect the employer’s decision to do random testing.

In addition, to that should the employer provide reasonable notice that a random drug test is coming at least for the first time that the company decides to engage in random drug test you can substantially level the playing field and protect your rights as an employer.

Potential Lawsuits Arising From Drug and Alcohol Testing

  1. Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). While some meds may show up as the result of a drug test, some may not, and in some cases drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If the company fails to hire an applicant because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable (unless the drug is medical marijuana).
  1. If an employer singles out a protected group, then the company could be open to another form of discrimination For example, if when you do your drug testing, you are found to test mainly older employees or applicants, or a specific race, or gender.  This could open the door to an employee lawsuit on the basis of discrimination.
  2. Invasion of privacy. An employer may have a valid reason for drug testing, and they may have established a no expectation of privacy policy within the company. And yet, even with all of these steps being taken the employer may still violate the right of the employee to privacy if they require the employee to either undress or urinate if front of someone for the purpose of protecting the specimen.
  3. Defamation, this can happen if a company should decide to announce who tested positive to serve as an open policy that those employees who fail the drug test will be either terminated or disciplined according to company policy.

Along those lines, an employee may demand a retest, and when the retest is concluded, and the employee is clean, this could result in a lawsuit because the employer announced the first test results and when the employer announced the first results people who did not need to know were told of the failed drug test.

FYI’s Concerning Drug Testing in California

Drug or Alcohol Rehabilitation

If you employ 25 or more employees, you are required by law to accommodate reasonably any employee who volunteers to enter an alcohol or drug rehabilitation program, unless the reasonable accommodation puts an undue hardship on the company.

Drug-free Workplace Policies

As an employer, you may choose to create and establish a drug-free workplace policy. If you decide to do so, the policy must be consistent and fair.  Should you have any questions, we would be happy to help you with that.

Drug Testing and Wrongful Termination

Every employer in California needs to be aware that California courts have developed a minimum of three wrongful termination theories, that employees may use who have been terminated because they refused to submit to drug testing can use as a basis for lawsuits.