Drug Testing Services in
California

Latest Update: Effective 01/01/2024 California will have restrictions testing applicants and employees for marijuana. There are some exceptions but testing with urine or hair for marijuana will be prohibited because they can detect off-duty marijuana use.  Employers are advised to update drug free workplace policies and perhaps change testing protocols.

Current California law does not prohibit employers from conducting drug testing on applicants or employees. Employers are generally allowed to drug test applicants on a pre-employment basis, provided that pre-employment drug tests are implemented and conducted in a fair and consistent manner to all applicants who are applying for a position within a specific job class.

California is a unique state for drug testing. DOT drug testing is required and is enforced by the Department of California Highway Patrol. A link to the controlled substances and alcohol testing compliance checklist is provided at the bottom of this page. This checklist is provided by the Department of California Highway Patrol; they are very serious about compliance in the drug testing program.

Lab-based urine drug testing and lab-based oral fluid drug testing are the most common types of drug testing performed in California. Many California companies operate as a drug-free workplace. California court cases have found that employers may require employees to pass a drug test as a condition of employment. As long as an employer tests all applicants for particular job positions and doesn’t single out certain applicants based on protected characteristics (such as race or disability), courts have upheld this type of testing.

California has legalized marijuana for medical and recreational purposes. The new California law AB 2188 takes effect January 1, 2024. This new law will make it unlawful to discriminate against an applicant or employee who has engaged in the lawful use of marijuana outside of work. This may effect traditional marijuana drug testing of applicants or employees as the law makes it unlawful for an employer to discriminate against employees and applicants on the basis of a drug test that measures only “nonpsychoactive cannabis metabolites.”  So traditional drug testing does not currently show current impairment. The new law won’t prohibit drug testing but the testing must show current impairment. There will be some limited exceptions involving safety sensitive positions.

Currently, DOT drug testing does not ever allow marijuana use in California or any state.

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, two municipalities, San Francisco and Berkeley have ordinances that restrict drug testing in a number of ways. Basically in California, random drug testing should be limited to safety-sensitive positions. A California court ruled that random testing did not have to be limited to situations involving public safety; if an employee works in an occupation in which his or her impairment could threaten the safety of coworkers or the worker himself random testing can be justified.

California has laws that provide that “intoxication” or controlled substance use (positive test/refusal) may affect eligibility for worker’s compensation or unemployment benefits. Generally speaking, an injury that is caused by drug or alcohol intoxication is not compensable. However, drug or alcohol intoxication at the time of injury does not necessarily mean that there is a complete bar to recovery. It must be proven that the intoxication caused the injury.

The basic California statutory requirement is that to be compensable, an injury must arise out of and in the course of the employment [CA labor code §3600(a)]. Other statutory conditions of compensability included in labor code §3600 are that:

(1) neither employer nor employee is excluded by statute

(2) the employee is performing service incidental to the employment at the time of injury

(3) the injury is proximately caused by the employment

(4) the injury is not caused by the employee’s intoxication

(5) the injury is not intentionally self-inflicted

(6) the employee did not willfully and deliberately cause his or her death

(7) the injury did not arise out of an altercation in which the injured employee was the initial physical aggressor

(8) the injury is not caused by the injured employee’s commission of a felony

(9) the injury did not arise out of voluntary participation in an off-duty recreational, social, or athletic activity

(10) the claim was not post-termination.

In California, if an employee alleges a work accident, the employer may raise a defense that the injured worker was intoxicated. If the employer prevails, the employee takes nothing. The employer has a rather high bar to meet though.

In order to succeed the employer must prove two things. Labor Code section 5705 (b) says that the intoxication must have caused the injury. First, the employer must prove the employee was intoxicated. Most employers don’t have a breathalyzer in the office – so you need the ability to get a mobile breath alcohol technician (BAT) out to your facility as soon as possible. A drug test should be conducted also as soon as possible. Lab-based oral fluid testing would be advisable because it shows more recent use of the drug as opposed to urine or hair testing.

If the judge decides the employee was intoxicated the second issue, cause, must be decided. It is not enough to show the employee was intoxicated, the employer must show that intoxication caused the injury. If an employee is intoxicated at work and injured because a box falls on them, the intoxication did not cause the injury; rather it was the falling box. On the other hand, if an employee is intoxicated at work and slips and falls, the intoxication may have caused the fall thus the employee will take nothing.

Published California court decisions do not fully explain what kind of causation is required to prove the defense of intoxication. However, the results reached in the cases indicate that the courts interpret the statutes as requiring that intoxication must be shown to be a proximate cause or substantial factor in causing injury, but not necessarily the sole cause. Research shows judges have gone both ways, sometimes favoring the employee and sometimes favoring the employer and denying the workers’ comp claim.

California Division of Workers’ Compensation (DWC) monitors the administration of workers’ compensation claims and provides administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits.

Finally, it must be noted that the intoxication defense in California is not automatic and could potentially be difficult to prove. The employer has the burden of proving intoxication as a proximate cause of the injury. It is not sufficient to show that the worker was intoxicated at the time of his accident. For the defense of intoxication to be sustained, it must be shown that the intoxication was a substantial cause of the injury.

An employer that condones or encourages drinking or the use of illegal drugs may be estopped from asserting the intoxication defense. The Supreme Court decision in McCarty v WCAB (1974) 12 c3d 677, 39 ccc 712 (employer estopped to raise intoxication because it permitted the consumption of alcohol at Christmas party) led many employers to seriously curtail employer-sponsored holiday festivities. Employers that allow employees to drink or use drugs on the job will not prevail.

Realizing that anyone’s workers’ compensation claim could cost tens or hundreds of thousands of dollars, it is a best practice to maintain a drug-free workplace to maintain a safer workplace and reduce the risk of accidents. If the accident does occur the post-accident drug test is the first step in using the intoxication defense to deny the worker’s compensation claim, the employer must first determine intoxication. From there, an employer would consult with the insurance carrier and legal counsel to determine the potential of claim denial and potential challenge from the employee.