Workers and job hunters may be subject to drug tests in California, and it is, therefore, essential to know one’s employment rights. Failing a drug test may negatively impact one’s career, family, or life. California courts attempt to respect one’s privacy while also, in some instances, requiring individuals to submit the results of a drug test. Employees are entitled to receive a fair and reliable drug test free from discrimination.

California Code of Regulations Section 213.4: Eligible Drugs Tests in California

Under California Code of Regulations 213.4, the following drugs are eligible for testing by employers:

  • Amphetamines
  • Methamphetamines
  • Marijuana
  • Opiates
  • Phencyclidine

Types of Drug Testing in California

Pre-employment

It is legal for an employer to require a potential worker to submit a “suspicionless” drug test, pre-employment. This usually occurs after the company hires an individual for a position but before they start working. In California, employers cannot require individuals to take a drug test until they have an offer of employment.

If the individual fails the drug test, employers are allowed to rescind their offer of employment. Not all employers require their potential employees to undergo a drug test, but if they do require it, they need to give their potential employees advanced notice.

Jobs that are more likely to administer a drug test as a condition of employment include the following:

  • Healthcare and hospital professionals
  • Law enforcement
  • Transportation
  • Childcare
  • Elderly care
  • Airlines
  • Nuclear power plants

If employers want potential employees to undergo a drug test, they should explicitly state such in their written policy. If they do not, it may be considered an invasion of privacy.

It is unlawful for employers to single out potential employees to get a drug test. If a company wants to require people to submit a drug test, there must be a protocol for all potential employees without exception. Employers cannot single people out to receive a drug test based on characteristics such as race, gender, or disability.

Random

Random drug testing is not truly random; instead, there needs to be a reasonable suspicion that someone has violated the drug policy to necessitate a drug test.

Reasonable suspicion for a drug test may include the following:

  • The employee in question has had a recent change in behavior and are now acting more impulsive
  • Somone observes the employee using nonprescription drugs at work
  • The employee shows signs that they are intoxicated while working
  • The employee is facing drug or alcohol-related charges.

An employer may not require an employee to undergo random drug testing based on characteristics such as race, gender, or disability. There may be grounds to file a lawsuit against them if they do.

Can Employees be Forced to Take Drug Tests in California?

Federal, state, and private employers are legally allowed to subject potential or current employees to a drug test.

Some local ordinances state that employers cannot force individuals to undergo a drug test. However, that is not a statewide law. Check your local government’s website for where you work if you are unsure whether your workplace can require you to undergo a drug test. In general, any employer can force potential or current employees to undergo a drug test. As previously outlined, they may be subject to pre-employment and random testing.

Employers need to balance the drug test requirements with privacy rights. In some instances, courts have ruled that an employee overstepped their boundaries and violated an individual’s right to privacy. Employers need to ensure their requirements are reasonable and not overly invasive. While one can refuse a drug test, there may still be repercussions, such as being denied employment or fired.

What are the Penalties for Failing Drug Tests in California?

There are not always penalties for failing a drug test. It will depend on the severity and the actions taken by the employer. It is within an employer’s legal right to terminate an employee or rescind an offer of employment if they fail. In some instances, they may refer their employees to the Employee Assistance Program and the employee must stop their use of drugs or else face termination.

As per the California Code of Regulations Section 213.5, people who fail a drug test will be disqualified from the examination and shall not be eligible to take any State civil service examination for a class for which drug testing qualifications require a drug test.

Can my Employer Terminate Me for Using Marijuana?

It is lawful for an employer to fire someone who tests positive for marijuana, especially since it is illegal under federal law. While California has legalized the recreational use of marijuana, employers still have the right to enforce a drug-free workplace. However, if the employee has a prescription for medical marijuana, it is wrongful to terminate them.

Can my Employer Terminate me for Taking Prescription Medication if it Shows up on Drug Tests in California?

If a doctor has prescribed the medication, an employer may not terminate employees for its usage. It is protected under the Americans with Disabilities Act because employers cannot discriminate against individuals because of a disability. If you are taking a prescription medication and believe it may show up on the drug test, then inform the drug lab conducting the test. If it does show up on the test results, one should treat it as confidential medical records.

Contact Pride Legal

If you or a loved one is concerned over a drug test for employment, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.

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