Is it now safe for employers in California to perform random drug testing on employees?
Since this is an election year let’s give the political answer first, are you ready? The answer is yes and no.
Employers have always been able to do pre-employment testing provided that they were wise in how they did them. What is being wise in how you do them here are some tips.
- If you do pre-employment testing make sure that there is a job offer attached to a passed test.
- If you are going to only test a certain classification make sure that you test everyone who falls into that job classification.
- Let all potential employee know that should they be offered the job, it is contingent on them passing a drug test during the interview. It is always wise to be as forth coming as possible.
Ok now let’s begin to talk about random drug testing in California. For years employers have advised employers to avoid drug testing like that.
One of the main reasons why attorneys were telling employers not to do random testing in California was because the state had really been employee friendly on this issue. Perhaps you are wondering what do I mean by employee friendly? California had felt that a random drug test was an invasion of the employees’ rights to privacy.
In addition to that the California Laws concerning Drug Testing was not spelled out clearly so this made it a real challenge for employers to know what to do, should I or shouldn’t I. If I am wrong get is going to be a very expensive date.
The Employees Right To Privacy Versus The Employers Reason For The Drug Test.
The above gets to the heart beat of California law when it comes to employers doing drug testing on their employees. The employer must be able to prove that the reason they had an employee tested was stronger or of more importance then the employees expectation of Privacy. And to be honest that can be a difficult scale to tip.
Random Drug Testing In California Gets a New Look In 1999
In 1999 thanks to the Smith v. Fresno Irrigation District, which choose to uphold the employer’s right to do random testing for employees who are in a safety sensitive position. The bad news about this case in spite of the victory for employers is that the case did not conclude that the Fresno Irrigation District had developed a model program that employers could actually take and build a model drug policy from.
The good news is that the court decidedly rejected the contention of the employee that only employees who worked in positions of public safety could be required to be a part of a random drug testing program.
It is significant that the court held, that the employee worked in a position that could pose a real and valid threat to either himself or other employees. In addition to that the court also rejected the idea that random drug testing was unfair, noting that unlike reasonable –suspicion test, that could be abused by supervisors who may be holding some kind of grudge, random tests were generally triggered by a computer program and so therefore were less likely to be abused.
In conclusions it is important to understand what turned the tide when it comes to random drug testing. In times past the employer had to prove that a safety sensitive position by definition was one that could cause harm to the public not simply the employee.
What Steps Should an Employer Take Who Wants To Begin Doing Random Drug Testing?
- Establish a policy in your employee handbook. This policy should address the chain of custody of the sample.
- Hand out the policy to your employees and have them sign that policy as well as have it established in the employee handbook.
- Make sure to give proper notification on the first test. Usually 30 days will suffice.
- Be consistent with this policy that you do everything that you can do to make sure that the policy is fair and consistent.
For a long time I was one of the HR Consultants that would advise employers not to do random drug testing but things have changed and if you do it right it can now be done without too much fear of the consequences.