Recently, the U.S. District Court for the Central District of California in Espindola v. Wismettac Asian Foods, Inc., dismissed a lawsuit of a former employee who claimed disability discrimination after he was terminated for testing positive for marijuana in a pre-employment drug test. The Court held that an employer can condition an offer of employment on passing a pre-employment drug screening, including a test for marijuana (the recreational use of which has been legal in California since 2018). The Court further held that an employer does not have any obligation to engage in the interactive process before terminating an employee under such circumstances.

The employer in Espindola contacted the employee to schedule a pre-employment drug screening. The employer required all prospective employees after they were offered a position and before starting work to undergo the drug screening. Espindola’s screening was postponed until after employment began at the employee’s request. The employee then completed a “personnel information sheet” on which he indicated he was not “disabled,” and signed a drug testing consent form that disclosed for the first time that he had “chronic back pain” and had been “prescribed” marijuana to treat his condition. Espindola did not provide any details or documentation to substantiate the nature of his condition or to explain any limitations on his ability to perform his job. He also forwarded Human Resources his medical marijuana card (which he obtained after he learned of the impending drug test), took the required drug test, and tested positive for marijuana. His employment was then terminated based on the results of the drug test. In response, Espindola filed a lawsuit for retaliation and disability discrimination under the California Fair Employment and Housing Act (“FEHA”) as well as claims for wrongful termination, failure to accommodate a disability, and failure to engage in the interactive process.

The Court granted the employer’s summary judgment motion and ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer. The Court held that chronic back pain “without more” does not qualify as a disability under FEHA and that “an employer does not have to accept an employee’s subjective belief that he is disabled.” Further, the Court held the employer established a legitimate, nondiscriminatory reason for the employee’s termination (i.e., the failed drug test), and it was under no obligation to engage in the interactive process before the employee passed the test.

The Court also concluded that Espindola could not rely upon his own delay in submitting to the drug test to argue that he was no longer an applicant at the time of the test, thus giving him greater privacy rights as an employee.

The Espindola case means that, at least in a California Federal Court, detection of marijuana in an employer pre-employment drug screening for an employee can be grounds for an employee’s termination even if the drug detected is legal. It is uncertain whether California State Courts will follow Espindola, however, there have been indications that they will. Thus, employees should check with their legal counsel before submitting to a pre-employment drug test. Employers should consult with legal counsel before terminating employees for detection of legal drugs in an employee’s system.

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.

Two employees subjected to “on-demand” random drug testing by their employer sued their employer and have been awarded damages for intentional infliction of emotional distress. In Aro v. Legal Recovery Law Offices, Inc., the California Fourth District Court of Appeals upheld the verdict.

Prior to the drug test, the employees had received a revised 2011 employee manual that stated that the employer reserved the right to test employees for the use of illegal drugs or alcohol where an employee’s job carries a risk of injury or accident, or after an accident or probable cause. When the Plaintiffs (employees) were provided the revised handbook containing the drug test policy by e-mail they asked what changes were made to the handbook. The employer merely advised that they should read it
and “figure it out” themselves.

In October 2011, the two Plaintiffs were unexpectedly required, along with all other employees, to take a drug test in a public bathroom. Both Plaintiffs resisted consenting to the drug test and were advised that the employer would “figure out what to do” with them later, and that they would be suspended and sent home in the interim.

The Plaintiffs finally agreed to the urine test. During the test, someone watched them in the bathroom. One of the Plaintiffs later complained to the employer he felt compelled to consent to the test due to “intimidation,” and did not feel comfortable
being watched. There was no evidence that the two Plaintiffs were individually suspected of drug use.

The Plaintiffs sued for breach of the contractually implied covenant of good faith and fair dealing and for intentional infliction of emotional distress, among other claims. After a bench trial, the trial judge awarded the Plaintiffs approximately $15,000 each for noneconomic damages. The employer appealed and the Court of Appeal affirmed the trial court’s ruling.

Furthermore, the Court determined that the Workers’ Compensation rules in California do not prevent Plaintiffs from recovering monetary damages for emotional distress since the random drug test administered in this case the Court found violated the Plaintiffs’ fundamental right to privacy, which is protected by the California Constitution, and therefore exceeded the risks and expectations inherent in the employment relationship.

The Court of Appeal also concluded that the employer’s conduct was sufficiently extreme and outrageous to constitute intentional infliction of emotional distress based on the lack of notice of a random drug test to the employees, and no individualized suspicion of drug use by the two Plaintiffs. The Plaintiffs were told to sign a consent form in front of other employees, and were threatened with suspension when they resisted. There was also evidence that indicated Plaintiffs were subjected to the random drug test only after they complained to the employer about unpaid overtime.

Although the Aro case was ordered not to be published and, therefore, cannot be cited as precedent in other cases it is clear California courts will weigh employees’ privacy interests with the employer’s business necessity for conducting random drug tests and such testing will continue to face heightened scrutiny. We recommend that employers review their drug test policies and consult with legal counsel on how they are to be implemented to ensure compliance with the hazy world of state and local requirements for random drug testing.

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.