California State Drug Testing Laws

Workplace Drug Testing Issues – California State Laws 

These categories do not effect DOT-regulated drug testing. Government employers should always call for potential additional restrictions on employee drug testing.

  • 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.
  • San Francisco and Berkeley both have ordinances that restrict drug testing in a number of ways – call National Drug Screening or contact your attorney.
  • California employers should only conduct post-accident drug testing only when they believe the individual caused or contributed to the accident.  

Know the New Marijuana Laws Affecting California Employers

With the changing legal landscape surrounding marijuana use, California is once again leading the charge. But how does this impact you as an employer? Here’s what you need to know about the recent changes, effective January 1, 2024.
Drug Testing IssueStatusComments
Instant or POCT Testing Allowed with cautionUse trained collectors and send all non-negatives to lab for confirmation
Drug PanelsNo Restrictions
LaboratoryLicensing requirementsLicensed laboratories required, SAMHSA certified laboratories highly recommended.
Medical Review Officer (MRO)Not RequiredHighly recommended to reduce exposure to liability.
Random TestingRestrictionsRestricted to safety sensitive workers.
Post-Accident No RestrictionsRecommend when there is reasonable suspicion
Reasonable SuspicionNo RestrictionsRecommend only when determined by a trained supervisor
Oral FluidsNo Restrictions
Hair TestingNo Restrictions
Unemployment DenialYes, address in company policyUnemployment Insurance Code §1256.4(a)(1) & (2) - State in your drug free workplace policy that a refusal to test or a positive test is misconduct. Terminate employment for misconduct.
Workers Comp DiscountNo
Intoxication DefenseYesLabor Code §3600(a) & (a)(4); an injury or death arising out of employment is not compensable if caused by the employee's intoxication.
Medical Marijuana YesAccommodation of medical marijuana use is not required on the property or premises of any place of employment or during the hours of employment.
Recreational Marijuana YesPassed November 2016, the law protects employers who have drug-free workplace policies that prohibit marijuana use by employees.
Report Driver DOT Positives YesCalifornia requires that MROs, BATs and TPAs report to the California Highway Patrol every positive DOT drug and alcohol (>0.04 BAC) test conducted on a CA CDL holder. The report does not include any individual test identification information. No reporting form has been provided.
General Statute--No general statue but several instances of case law.

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

Drug Testing in California

Testing locations are available in all areas. For immediate service for employers or individuals call 866-843-4545 or Order Now.

Marijuana Laws for California

Marijuana considerations are important and marijuana laws often update often, check out Marijuana in the Workplace.