More to learn regarding drug testing and drug testing laws in California
Earlier this week we posted a blog article from William J. Judge, JD. LL.M. & Nick Hartman, Co-Founders of Drug Screening Compliance Institute (DSCI). This article is an update after further research by Joe Reilly, President of National Drug Screening.
California does not have a statute that specifically regulates drug testing in the private sector. However, there is case law that affects who can be tested and under what circumstances. Additionally, San Francisco has an ordinance that restricts drug testing in several ways. Employers should consider legal decisions related to drug testing prior to establishing a drug-free workplace program that includes any type of drug testing.
San Francisco and Berkeley both have ordinances that restrict drug testing in a few ways, caution is advised.
Post- Accident Testing
California employers should conduct post-accident drug testing only when they believe the individual caused or contributed to the accident.
California has strong invasion of privacy interests in its constitution and as seen in court decisions. Several decisions regarding employment drug testing have resulted in favorable decisions with consensus – Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest. Another court cited: The constitutionality of a drug test under the California Constitution is evaluated by balancing the employee’s reasonable expectation of privacy against the employer’s legitimate interests in imposing the test.
Should be restricted to safety-sensitive workers.
California Public Utilities Commission has regulations requiring certain Non-DOT drivers to have drug and alcohol testing programs. These include taxi drivers, limousines, airport shuttles, and charter bus companies. The California Highway Patrol Rotation Tow Program requires tow truck operators in this program to have requirements for drug and alcohol testing. Both programs mentioned should utilize DOT like drug and alcohol testing.
Medical & Recreational Marijuana Laws
The laws do not affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees. Workplace accommodation is not required. Employers retain the right to maintain a drug and alcohol-free workplace. The laws do not require employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies in place that prohibit the use of marijuana by employees and/or prospective employees. The laws specifically mention that they do not prevent employers from complying with state or federal law. This includes federally mandated drug testing.
Unemployment compensation claim denial
An individual is disqualified for benefits if: s/he was discharged for chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use intoxicants, including alcohol. An individual is disqualified for benefits if s/he left employment for reasons caused by an irresistible compulsion to use intoxicants, including alcohol.
Workers’ compensation claim denial
No compensation shall be allowed for an injury which is caused by the intoxication by alcohol or the unlawful use of a controlled substance of the injured employee.
Instant or POCT Testing
Only certain qualified individuals may perform tests or operate point of care testing devices. Although this does not explicitly touch upon workplace drug testing, caution is advised due to the litigious nature of the state of California. Always use trained collectors and send all non-negatives to lab for confirmation.
Report Driver DOT Positives
California requires that MROs, BATs and TPAs report to the California Highway Patrol every positive DOT drug and alcohol (>0.04 BAC) test conducted on a CA CDL holder. The report does not include any individual test identification information. No reporting form has been provided.