Many California employers are dropping marijuana from their testing panel. Others are including marijuana but testing with oral fluid specimens in order to be compliant with AB 2188 (details below). For DOT and PUC testing there are no changes, use of marijuana is prohibited in these workplaces and marijuana testing with urine specimens is required.
Marijuana Testing Restrictions in California
As of January 1, 2024, California employers faced new restrictions on testing applicants and employees for marijuana. While some exceptions exist, urine and hair testing for marijuana is prohibited since those methods detect off-duty marijuana use.
Employers should:
- Update drug-free workplace policies
- Review and possibly revise testing protocols
General Drug Testing Laws in California
California law does not prohibit employers from drug testing applicants or employees. Pre-employment testing is allowed if implemented fairly and consistently for all applicants in the same job class. DOT drug testing is required for certain employees and enforced by the California Highway Patrol (CHP). See the Controlled Substances and Alcohol Testing Compliance Checklist from CHP.
Common Types of Drug Testing in California
- Lab-based urine drug testing
- Lab-based oral fluid drug testing
- Lab-based hair testing
Many California employers operate drug-free workplaces. Courts have upheld testing as a condition of employment, provided that all applicants for specific job positions are tested equally and without discrimination.
Marijuana Laws: California AB 2188 (Effective 2024)
California legalized marijuana for medical and recreational use. However, AB 2188, effective January 1, 2024, makes it unlawful to discriminate against an applicant or employee who lawfully uses marijuana outside of work.
Key Implications:
- Traditional marijuana tests (urine/hair) detect only nonpsychoactive metabolites, not current impairment
- Employers cannot use such tests to deny employment or take adverse action
- Testing must now demonstrate current impairment
- Exceptions apply for safety-sensitive positions
- DOT-regulated testing still prohibits marijuana use in all states, including California
- For Non-DOT or Non-PUC employers, oral fluid testing is now the available option to include marijuana in workplace testing programs
Random Drug Testing and Case Law
California lacks a statute specifically regulating private-sector drug testing, but case law defines the rules. Random testing should generally be limited to safety-sensitive roles. Some cities, like San Francisco and Berkeley, have local ordinances with additional restrictions. Courts have ruled that random testing is justified if impairment could endanger the employee or coworkers, even outside public safety roles.
Workers’ Compensation and Intoxication Defense
Under California law, drug or alcohol use may affect eligibility for workers’ compensation or unemployment benefits. An injury is not compensable if caused by intoxication, but intoxication alone doesn’t automatically bar recovery—it must be proven that intoxication caused the injury.
Legal Framework (CA Labor Code §3600(a))
An injury must arise out of and in the course of employment, and:
- The employer and employee are covered by statute
- The employee was performing work duties
- The injury was caused by employment
- The injury was not caused by intoxication
- The injury was not self-inflicted
- The employee did not willfully cause death
- The injury did not result from aggression
- The injury was not tied to a felony
- The injury did not occur during off-duty recreation
- The claim was not post-termination
Proving Intoxication in Workers’ Compensation Claims
Employers may raise intoxication as a defense but must prove:
- The employee was intoxicated, and
- Intoxication caused the injury
Recommended steps:
- Use a mobile breath alcohol technician (BAT) immediately
- Conduct a drug test promptly—lab-based oral fluid testing is preferred as it indicates recent use
If intoxication is proven, the court must still determine whether it caused the injury.
Example:
- If an intoxicated employee is hit by a falling box → intoxication did not cause injury.
- If the same employee slips and falls, intoxication may have caused it.
Burden of Proof and Case Examples
The employer must prove intoxication as a proximate cause of injury. Simply showing intoxication at the time of the accident is not enough. Notable case: McCarty v. WCAB (1974)—employer barred from using intoxication defense because it allowed alcohol at a company Christmas party.
Key takeaway:
Employers that permit alcohol or drug use on the job are unlikely to prevail in intoxication-related defenses.
Best Practices for Employers
- Maintain a drug-free workplace policy
- Conduct post-accident drug testing promptly
- Coordinate with insurance carriers and legal counsel to evaluate potential claim denials
A strong drug free workplace policy helps reduce accidents, minimize claims, and protect legal standing.
California Public Utilities Commission (CPUC) Drug Testing Program
The California Public Utilities Commission (CPUC) enforces drug testing for limousine, bus, and shuttle companies. Applicants for PSC or TCP operating authority must maintain a mandatory drug and alcohol testing program, per Public Utility Code §§ 1032.1, 5374(a)(2), and (b)(1)(i).
Program Requirements:
- Applies to drivers of vehicles with 15 seats or fewer
- Includes pre-employment, random, and post-accident testing
- Requires employee education and supervisor training
- Operators of vehicles with 16+ seats must follow federal regulations
Related Resource: California Highway Patrol – Controlled Substances and Alcohol Testing Compliance Checklist
National Drug Screening offers a Drug Testing Program Required by California PUC
Drug Testing Centers in California
National Drug Screening offers immediate testing throughout California. Testing locations are available in all areas of California with the most testing facilities available in the following cities:
Los Angeles, San Francisco, San Diego, Sacramento, San Jose, Oakland, Santa Barbara, Pasadena, Mountain View, Beverly Hills, Anaheim, Hollister, Long Beach, Berkeley, Palm Springs, Fresno, Monterey, Santa Monica, Bakersfield, Malibu, Palo Alto, Big Sur, Irvine, Newport Beach, Huntington Beach, Cupertino, Temecula, Modesto, Santa Cruz, Napa, San Luis Obispo, Stockton, Riverside, Calabasas, Richmond, Laguna Beach, Torrance, Orange, Burbank, Sunnyvale, Ventura, Ontario, Carlsbad, Carmel-By-The-Sea, Santa Clarita, Fremont, Solvang, Santa Rosa, Corona, Eureka, and Glendale.
For drug testing in California call National Drug Screening at 866-843-4545 or Order Online
