Now that Proposition 64 permits recreational use of marijuana in California, employers have expressed concern about the legality of, and liability for, workplace drug testing. Proposition 64 recognizes an employer’s right “to enact and enforce workplace policies pertaining to marijuana.” However, that begs the questions – what are best practices and policies for workplace random drug tests? When may an employer require random drug tests?
Since 2008, California employers need not accommodate an employee’s medicinal marijuana use, However that doe not mean a California employer can always conduct a random drug test.
An employer’s right to drug test relies on balancing the employee’s privacy interest against the employer’s interest in keeping the workplace safe and drug-free, and whether the employer’s interest can be accommodated in less intrusive ways than random testing. Typically there are less intrusive ways than random drug tests unless random drug testing is required by law.
There are a few exceptions to this general rule. Certain federal authorities require California employers to establish a controlled substances and alcohol testing program that includes random testing. Federal authorities that require random drug testing include the Department of Transportation, Federal Motor Carrier Safety Administration, Federal Railroad Administration, Federal Aviation Administration, Federal Transit Administration, Pipeline and Hazardous Materials Safety Administration, and the United States Coast Guard.
Without a federal requirement of random drug testing California employers may randomly drug test solely if the employer has a strong case that the employee is in a safety-sensitive position and, if allowed to work under the influence of drugs, would pose some imminent safety or health threat with irremediable consequences.
This is an extremely high standard of proof. Random drug testing of nuclear power plant workers, correctional officers, hazardous pipeline employees, government employees with secret national security clearances, aviation personnel, and civilian employees at a chemical weapons plant has been held to be proper since being under the influence could have dire consequences for these employees and everyone around them. Consequently the employer’s and the public’s interest to be safe outweigh the privacy interests of the employee.
San Francisco further restricts drug testing of employees, and has a local ordinance that instructs “[u]nder no circumstances may employers request, require or conduct random …blood, urine or encephalographic testing.” Therefore, unless this requirement is preempted by the federal mandates, San Francisco employers cannot randomly drug test employees.
In California the individual’s right to privacy is Constitutional and is scrupulously protected by law. An unlawful drug test could give rise to claims of invasion of privacy or wrongful termination in violation of public policy if an employer takes action based on the employee’s refusal to take the test. The litigation exposure risk is high and the reward is low unless the employer is confident that federal law authorizes the random drug test or the employee is truly performing a safety-sensitive role.
With the state legalization of marijuana for recreational use, employers should re-assess their written policies, job applications, background check procedures, public safety component attendant each of their employment positions and new employee interview materials to ensure compliance with California’s unusual drug testing laws.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
Leave a Reply