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.
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.
Workplace Drug Testing Laws in California
|Drug Testing Issue||Status||Comments|
|Instant or POCT Testing||Allowed with caution||Use trained collectors and send all non-negatives to lab for confirmation|
|Drug Panels||No Restrictions|
|Laboratory||Licensing requirements||Licensed laboratories required, SAMHSA certified laboratories highly recommended.|
|Medical Review Officer (MRO)||Not Required||Highly recommended to reduce exposure to liability.|
|Random Testing||Restrictions||Restricted to safety sensitive workers.|
|Post-Accident||No Restrictions||Recommend when there is reasonable suspicion|
|Reasonable Suspicion||No Restrictions||Recommend only when determined by a trained supervisor|
|Oral Fluids||No Restrictions|
|Hair Testing||No Restrictions|
|Unemployment Denial||Yes, address in company policy||Unemployment 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 Discount||No|
|Intoxication Defense||Yes||Labor 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||Yes||Accommodation 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||Yes||Passed November 2016, the law protects employers who have drug-free workplace policies that prohibit marijuana use by employees.|
|Report Driver DOT Positives||Yes||California 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. Having a written policy is strongly suggested based on constitutional realities.
- 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.”
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