Important to note that urine drug testing shows nonpsychoactive metabolites so urine drug testing should not occur except for DOT drug testing or exceptions cited above. Oral fluid drug testing detects parent drugs so many California employers have switched to oral fluid. Some employers in California have also dropped marijuana from their testing panel.
What is the New Law in California for Drug Testing??
AB 2188 shifts the standard for cannabis-related drug testing in California workplaces. The law bars employers from disciplining or rejecting someone for testing positive for nonpsychoactive cannabis metabolites, which can remain detectable for days or weeks after legal cannabis use.
This restriction is important because traditional tests—such as urine or hair samples—often detect these metabolites, not whether someone is impaired at work. As a result, employers must now use testing methods (like saliva, blood, or breath) that identify active THC or rely on impairment-based evaluations.
This law does not prevent employers from:
- Enforcing drug-free workplace policies.
- Testing for impairment or active THC.
- Taking action if cannabis is used or causes impairment during work hours.
Is It Legal for Employers to Drug Test in California?
Yes, it is legal for employers to drug test, but there are strict and limited circumstances where this is allowed.
Pre-Employment Testing
California law permits employers to conduct drug testing after making a conditional job offer but before the employee starts work. This is known as pre-employment or “suspicionless” drug testing. Tests that detect only nonpsychoactive cannabis metabolites (which remain in the body long after impairment) may not be used to reject a candidate. Instead, tests must detect active THC, which may indicate recent use or current impairment.
Example: A warehouse hires a new forklift operator and schedules a drug test after the job offer. The employer uses an oral fluid test that detects active THC compounds. However, if the employer instead used a hair or urine test that detects metabolites from cannabis used over 2 – 3 days earlier, that result cannot legally be used to revoke the job offer.
Random Testing
California restricts random drug testing to roles where public safety or federal oversight is involved. These typically include employees operating heavy machinery, public transportation vehicles, or performing duties regulated by the DOT or FAA.
Private employers in non-regulated industries do not have automatic authority to conduct random testing. To do so lawfully, they must prove that the job function involves substantial risk to the public or others, and even then, testing must be narrowly tailored. Employers should specifically define the safety sensitive positions that will become subject to random testing.
Example: A commercial trucking company operating under federal DOT regulations conducts random testing of drivers for controlled substances, including cannabis. This is required under federal law and permitted under California law. By contrast, a tech startup in Sacramento that randomly tests its programmers without cause would be violating employee privacy protections and state testing restrictions.
Reasonable Suspicion Testing
Employers in California are permitted to conduct drug or alcohol tests when there is reasonable suspicion that an employee is impaired during work hours. Reasonable suspicion must be based on specific, observable behaviors that suggest substance use is affecting the employee’s performance or safety.
This may include:
- Slurred speech
- Unsteady walking or movement
- Odor of alcohol or cannabis
- Bloodshot eyes
- Sudden changes in behavior or mood
- Physical altercations or preventable accidents
The observation must be documented by the observing supervisor and, when possible, confirmed by a second supervisor. Testing should be conducted promptly, and the employee should be transported to the collection site to prevent further risk or liability. The supervisors making the reasonable suspicion determinations should have previously been training – Supervisor Training for Reasonable Suspicion.
Post-Accident Testing
Employers may conduct drug and alcohol testing following an on-the-job accident if the incident meets predefined criteria in the company’s policy and there is a rational basis to suspect substance use. The testing must be tied to the incident, not used as a general screening method.
Post-accident testing is typically triggered when:
- Workplace injuries require urgent care
- Property or equipment damage exceeds a set dollar amount
- Accidents result in a safety investigation
- Incidents have no clear explanation for the cause
- Workplace injuries that will be subject to a workers comp claim
Employers must clearly define what types of accidents trigger testing and apply the policy uniformly.
If you need help writing or clarifying your workplace drug policy, reach out to National Drug Screening for advice or a custom-written policy to support your workplace safety.
Drug Free Workplace Policy
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What Happens If You Fail a Drug Test but Have a Prescription or Medical Card?
In California, employees who test positive for a drug covered by a valid prescription may have protections under both state and federal law. However, these protections vary depending on the substance, the job role, and the employer’s policies. A medical marijuan card is not a prescription.
Prescribed Medications
If you are taking a legally prescribed drug (such as opioids, ADHD medications, or anti-anxiety medications), you are generally protected from adverse employment action if the medication does not impair your ability to safely perform your job. However, you may still be required to disclose the medication to a Medical Review Officer (MRO) during the verification process.
Medical Marijuana
California allows the use of medical cannabis, but it is not treated the same as other prescriptions under federal law. Even with a valid medical card, cannabis is still classified as a Schedule I drug federally. Employers—especially those operating under federal contracts or regulations—may take disciplinary action for a positive cannabis result regardless of medical use. It is critically important that employers have written policies regarding the use of marijuana. It is ultimately the employer policy that determines the outcome when an employee has a marijuan positive and claims medical marijuana authorized use.
How to Notify an Employer
Employees are not required to inform employers of their prescriptions unless:
- The drug may affect their job performance or safety.
With a positive drug test result, the employee or applicant should explain the prescription directly to the MRO, not to their supervisor or HR, unless specifically required by policy.
Employer Discretion and Exceptions
Employers may still restrict the use of impairing substances in safety-sensitive roles, such as those involving heavy machinery, driving, or public safety. They are also allowed to enforce drug-free workplace policies where applicable by law or contract.
Can You Fight a Failed Drug Test?
Yes. If you receive a positive result on a workplace drug test, you have the right to challenge the result under specific circumstances.
1. Contact the Medical Review Officer (MRO):
The MRO is the licensed physician responsible for reviewing and verifying drug test results. If you test positive, the MRO should contact you to:
- Review whether any prescribed or over-the-counter medications could explain the result.
- Give you a chance to provide documentation (e.g., prescription records or pharmacy receipts).
2. Request a Retest (Split Sample Testing) or Retest of Original Sample:
Most drug testing procedures collect two samples or retain a portion of the original sample. You may request that the second sample (the split specimen) or a portion of the original sample be tested at another certified lab. This must be done promptly and may involve additional cost depending on your employer’s policy. The employee or applicant may have to bear the cost of the retest.
3. File a Complaint (If Applicable):
If you believe the drug test was discriminatory, not properly conducted, or a violation of privacy, you may contact the California Civil Rights Department or consult legal counsel to determine next steps.
Can You Refuse a Drug Test in California?
An employee can refuse a drug test, but doing so may carry the same consequences as a positive test result, depending on the employer’s written policy.
What Counts as a Refusal? Refusal to test is not limited to outright saying “no.” It can also include:
- Failing to appear at the testing site within the required timeframe.
- Leaving before the testing process is complete.
- Failing to provide a sample without a valid medical explanation.
- Interfering with the testing process (e.g., tampering with the sample or failing to follow instructions).
- Refusing a directly observed collection when required.
Consequences of Refusal Refusing to test is typically treated as a policy violation, which may lead to:
- Disciplinary action
- Suspension
- Termination, especially in regulated or safety-sensitive positions
Employers must document all refusals and apply policies consistently. Employees should review their company’s drug testing policy before making a decision and consult HR or legal counsel if needed.
For drug testing needs and expert consultation on drug testing laws in California, contact National Drug Screening.
