California Drug Testing and State Law
California Court decisions since 1972 have made one thing clear – facts matter! Not all employers are alike, nor are all employees’ jobs. The courts will examine the work environment as a whole, the specific duties of each job to determine the level of intrusion into the individual’s privacy interest, and whether it’s warranted. The greater the invasion of privacy, the more you’ll need to justify it: As you move from reasonable suspicion testing (the least intrusive) to random (the most intrusive) the risk of challenge increases. Therefore, the employer must be prepared to show significant justification for the intrusion (such as safety concerns).
No specific requirements but some limitations. Case history in California has tried to balance the safety benefits of drug testing with the employee’s reasonable expectation of privacy. Having a written policy is strongly suggested based on constitutional realities.
- California – AB 2188 – Passed – 09/19/22 – Amends the California Fair Employment and Housing Act to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace or if employer-required drug screening test has found cannabis metabolites in their urine, hair, or bodily fluids. Exceptions exist for employees who are impaired on the job, tests that detect “the active presence of THC in the employee’s or prospective employee’s system,” employers who are required by federal law to test for cannabis, and employers who would lose a federal funding or federal licensing-related benefit. The law takes effect on January 1, 2024 and may effect employer drug testing for marijuana.
- A local ordinance in San Francisco (and possibly Berkeley) may limit workplace drug testing, strongly advise no non-DOT testing in San Francisco and Berkeley unless documented reasonable suspicion or consult with an attorney.
- Random testing should be limited to safety sensitive positions, clearly define these in a company policy.
- Address medical and recreational marijuana in company drug free workplace policy.
- Workers’ compensation law offers an intoxication defense.
- Unemployment law provides that an employee fired for a positive test or refusal to test may be considered fired for “misconduct.”
Besides DOT testing other types of drivers in California are required to participate in drug testing programs required by the The California Public Utilities Commission (CPUC). These CPUC or PUC requirements are complex and should be review carefully.
This chart is intended for informational purposes only and should not be relied upon for legal guidance. State and local law varies greatly; therefore, you are advised to consult experienced legal counsel during the design of your actual substance abuse testing program and with any questions that follow.
State Law California
