What is the New Law in California for Drug Testing?
California regulation AB 2188 is about protecting employees who smoke or ingest marijuana on their time off. Employers must not take any adverse action against an applicant or an employee who tests positive for marijuana, detecting non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. DOT testing is exempt, as marijuana testing is required.
Employers can eliminate marijuana from their testing panel or consider switching to testing with oral fluid, which detects the parent drug and shows more recent use of the drug. Other than DOT drug testing, California employers should not test urine for marijuana.
Is It Legal for Employers to Test for Drugs in California?
Yes, it is legal to test for illicit drugs in California. Employers throughout California test for drugs daily. The State of California, as an employer, also tests its employees.
There are no explicit requirements for employer drug testing, but certain limitations exist. Case law in California has sought to reconcile the safety advantages of drug testing with the employee’s legitimate expectation of privacy. It is highly recommended to establish a written policy in light of constitutional considerations. Random testing would be required for DOT regulated employers, but perhaps limited to safety-sensitive positions for non-DOT employers.
San Francisco and Berkeley both have ordinances that restrict drug testing in a number of ways – contact your attorney for more information.
Pre-Employment Testing
Applicants being considered for hire must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration. For DOT regulated companies pre-employment testing is required. For non-DOT employers, pre-employment testing is optional. Policies must be consistent.
The most common pre-employment drug test is a 5-panel drug test, testing for Marijuana metabolites, Cocaine metabolites, Amphetamines, Opioids, and Phencyclidine (PCP). For the DOT 5 panel drug test, we can break this down further:
- The Amphetamines panel includes Methamphetamine, Methylenedioxymethamphetamine (MDMA), and Methylenedioxyamphetamine (MDA). The drugs associated with MDMA or MDS are Ecstasy or Molly
- The Opioids panel includes Codeine, Morphine, Hydrocodone, Hydromorphone, Oxycodone, Oxymorphone, and 6-Acetylmorphine (6AM). The 6AM is the metabolite of heroin
- The marijuana metabolite is THCA, which is the metabolite of THC (delta-9-tetrahydrocannabinol, marijuana’s major psychoactive ingredient)
- The cocaine metabolite is Benzoylecgonine
Random Testing
DOT-regulated employers have a requirement to conduct random testing. Non-DOT employers can implement random testing but it is advised only for safety-sensitive positions. A company should clearly define its safety-sensitive positions. With random testing, every employee enrolled in the random testing pool has an equal chance of being selected. Once selected and notified, an employee must report for testing immediately.
Random testing can serve as a deterrent to an employee using illicit drugs in off-hours.
Reasonable Suspicion Testing
Employees are subject to testing based on (but not limited to) observations by at least two members of management of apparent workplace use, possession or impairment. HR should be consulted before sending an employee for testing. Management must use a Reasonable Suspicion Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol.
Examples include:
- Odors (smell of alcohol, body odor or urine).
- Movements (unsteady, fidgety, dizzy).
- Eyes (dilated, constricted or watery eyes, or involuntary eye movements).
- Face (flushed, sweating, confused or blank look).
- Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
- Emotions (argumentative, agitated, irritable, drowsy).
- Actions (yawning, twitching).
- Inactions (sleeping, unconscious, no reaction to questions).
When reasonable suspicion testing is warranted, both a supervisor and HR will meet with the employee to explain the observations and the requirement to undergo a drug and/or alcohol test within two hours. Refusal by an employee will be treated as a positive drug test result and can result in immediate termination of employment.
Under no circumstances should an employee be allowed to drive himself or herself to the testing facility. A member of management must transport the employee or arrange for a cab for the employee to be transported to the testing facility and home.
Post-Accident Testing
Employees are subject to testing when they cause or contribute to accidents that seriously damage a company’s vehicles, machinery, equipment or property or that result in an injury to themselves or another employee requiring off-site medical attention. A circumstance that constitutes probable belief will be presumed to arise in any instance involving a work-related accident or injury in which an employee who was operating a motorized vehicle (including a company forklift, pickup truck, overhead crane or aerial/man-lift) is found to be responsible for causing the accident.
In any of these instances, the investigation and subsequent testing must take place within two hours following the accident, if not sooner. Refusal by an employee will be treated as a positive drug test result and will result in immediate termination of employment.
What Happens If You Fail a Drug Test but Have a Prescription or Medical Card?
If you have a prescription for drugs that test positive at the lab, the Medical Review Officer will reach out to you to determine if your prescription caused the positive result. If this is verified, your final result will be negative.
There is no prescription for marijuana. For DOT required testing, there is no exception for medical or recreational marijuana. For an employee with an authorized state-issued medical marijuana card, it will be up to an employer to make an accommodation for the use of medical marijuana.
Employer Discretion and Exceptions
Even with updated cannabis laws, employers can restrict substance use for positions tied to safety. This applies to jobs that involve operating machinery, commercial driving, or emergency services. Employers may also enforce drug-free policies when required by law or contract terms, which should be outlined in the employer’s official policy.
Can You Fight a Failed Drug Test?
Yes, you can fight a failed drug test with a challenge. An employee who has been notified by the MRO of a verified positive drug test or refusal to test because of adulteration or substitution has 72 hours from the time of notification to request a test of the split specimen or retest of the original specimen. The request may be in writing. If the request is made directly to the MRO within 72 hours, it will trigger the test of a split specimen or retest of the original specimen. The employee will be responsible for the cost of the test of the split specimen or for the cost of the retest of the original specimen.
If, as an employee, you have not requested a test of the split specimen or retest of the original specimen within 72 hours, you may present to the MRO information documenting that serious injury, illness, lack of actual notice of the verified test result, inability to contact the MRO (e.g., there was no one in the MRO’s office and the answering machine was not working), or other circumstances unavoidably prevented you from making a timely request.
If the MRO concludes from the employee’s information that there was a legitimate reason for the employee’s failure to request the test of the split specimen within 72 hours, the MRO must direct that the test of the split specimen take place, just as if there had been a timely request.
When the employee makes a timely request for a test of the split specimen or a retest of the original specimen; the MRO will immediately provide written notice to the laboratory that tested the primary specimen, directing the laboratory to forward the split specimen or portion of the original specimen to a second SAMHSA certified laboratory. The MRO will document the date and time of the employee’s request and report to the Company whether the test confirmed the presence of the drug.
The above is the only way to challenge the outcome of a result other than filing a lawsuit.
