Drug Testing Laws California

26 Jul 2016

Drug Testing Laws California

In California there is no general law or laws that regulate workplace drug testing.  It is important to take a look into some court decisions and other laws or regulations that might affect employer drug testing in California.

Privacy is a huge issue in California.  The state’s Constitutional right of privacy and several court decisions would imply that in California random drug testing should be limited to job positions that are safety sensitive.  It would be up to each employer to decide in writing what job positions are considered safety sensitive in considering a random testing program.  DOT regulated drug testing programs would always include random testing as per the DOT regulations.

A written drug free workplace policy is always critical to success and to avoid exposure to liability.  A policy should give employees with advanced notice of the rules governing their behavior while employed by the company. Being able to show a written policy exists and that the employee acknowledged receiving a copy of it could be used to show any expectation of privacy was diminished.

No restrictions in California are noted for Pre-employment drug testing, Reasonable suspicion drug testing and Post accident drug testing. Pre-employment drug testing should only occur when a conditional offer of employment has been made (Post-Offer).  The applicant should not be allowed to start work until the pre-employment drug test result comes back negative.  

Medical marijuana is recognized in California, the State Supreme Court has ruled that the law does not apply to the private workplace.  Employers have a right to maintain a drug free workplace and must decide their policy on medical marijuana in their workplace – allowed or not allowed.

Note that a local ordinance in San Francisco and possibly also Berkeley may limit workplace drug testing.  This would not apply to pre-employment drug testing or DOT regulated drug testing.  Employers in San Francisco and Berkeley should consult legal counsel.

Testing methodologies are not defined or restricted in California laws.  Employers can choose urine testing, oral fluid testing or hair testing.  All positive results will be confirmed by an independent methodology utilizing GC/MS or similar approved method. A medical review office (MRO) should be used to review and verify drug test results.   

At the end of this article you will find a great checklist for implementing a drug free workplace policy in a California workplace. The MRO plays a critical role in the test process. A laboratory can determine what is in a sample, but the MRO can determine how it got there – legitimately or otherwise. Courts have approved of the MRO process as a protection for the employee.

In California the workers compensation laws favor the employer whereas a claim can be denied if the injury is caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.  An employer is not required to prove that a claimant’s use of an illegal drug or alcohol was the sole proximate cause of the accident resulting in injury, but rather need only establish that the employee’s intoxication is a proximate cause or substantial factor in bringing about the accident.  We call this the Intoxication Defense, Click Here for a free report on the Intoxication Defense in California.

California code requires cities or counties to adopt regulations for drug testing programs for taxi cab drivers transporting 8 passengers or less including the driver. A mandatory controlled substance and alcohol testing certification program shall closely follow the DOT drug and alcohol testing regulations 49 CFR Part 40.

The California Public Utilities Commission regulates for-hire passenger carriers, such as limousines, airport shuttles, transportation network companies (like UBER), household good carriers (moving companies) and charter bus companies both PSC and TCP’s in the state to have a  controlled substances and alcohol testing program and policy. Requirements include a written policy, pre-employment, random and post-accident testing of drivers, employee education, and supervisor training.   

Setting up drug free workplace and drug testing programs in California requires careful planning.  A company setting up a program should follow the checklist we have provided below.  You can also Click Here to access a PDF document of this checklist.

 

California – Drug Free Workplace Program Policy Checklist

  • €        Written Policy has been developed per state court cases.
  • €        Notice of the substance abuse testing policy has been posted in conspicuous places throughout the work site.
  • €        A copy of this policy has been given to each current employee.
  • €        A copy of this policy is available for review by any employee in the office of employer’s human resource department.
  • €        Where appropriate, the policy and all related documents have been translated into appropriate languages.
  • €        Where applicable, all Union Representatives have been notified and an opportunity to negotiate has been given.
  • €        A notice of our EAP and how to access it has been posted.
  • €        A substance abuse professional resource file is being maintained by the employer’s human resource department.
  • €        We are prepared to provide employees with written notice of any positive test results along with details of that employee’s rights of appeal.
  • €        We will pay all costs of any test required by this policy.
  • €        We will reimburse each employee any costs of transportation to/from a collection site if it’s not at our worksite.
  • €        We will warn an employee who tests positive that s/he is responsible for the cost of split specimen testing.
  • €        We will only randomly test those in safety sensitive jobs or seeking promotion to safety sensitive jobs.
  • €        We will only randomly select safety sensitive employees using an independent party who will use a computer for selection.
  • €        We will provide all employees with appropriate training regarding this program.
  • €        We will provide warning to all employees that the use of over the counter medicines obtained in foreign countries could cause a positive result.
  • €        All tests will be conducted during normal, “on duty” time.
  • €        All pre-employment testing will be conducted BEFORE the candidate begins work.  
  • €        We will NOT require/request that employees disclose any prescriptions they are taking. They will be encouraged to discuss all medications with the MRO.
  • €        We will abide by all medical marijuana rules impacting the workplace.

 

For expert consultation on setting up drug free workplace program in California call Joe Reilly at 321-622-2020.

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