While perhaps not as common as it once was, many employers still subject their applicants and employees to drug testing. In certain cases, there may be valid concerns over public safety, while in other cases, drug testing may be used for discriminatory or unfair purposes. Whether you are being asked to take a drug test as an applicant or an employee, it is vital for you to understand your rights. And if you have been denied employment or terminated as a result of your drug test, you may want to consider speaking with an employment attorney about whether you have any recourse.

You Have a Right to Privacy

The first step in understanding your rights is to recognize that you are guaranteed a right to privacy under the California Constitution. In the context of drug testing, the courts attempt to balance the employee’s reasonable expectation of privacy against the employer’s interest in regulating their employees. Determining whether or not an employer’s actions have violated a worker’s right to privacy will be a fact-intensive analysis, but ultimately, the law in California discourages drug testing except in a few narrowly interpreted situations.

Pre-Employment Drug Testing

Workers should be aware that pre-employment drug testing is legal in California, provided that employers do what they can to maintain an applicant’s right to privacy. The reasoning is that prospective employers do not have the same ability to observe applicants as it does for current employees. In other words, the courts recognize that employers have the right to screen applicants for potential drug problems that can affect their abilities as employees.

As a result, you may be required to take a drug test as part of the application process. However, it must meet the following conditions:

It can only be required as a condition of a job offer. The employer cannot require you to take a drug test as part of the application process prior to offering you a job. It is important to note, however, that it is appropriate for the employer to condition your hiring upon passing the test.
The drug testing must be “suspicionless.” The employer must require all applicants who are offered jobs to take a drug test. Employers cannot be selective as to which applicants will be tested and which will not.

If you were required to take a drug test before being offered a job or believe that you were singled out, you may have legal recourse against the employer. An experienced employment attorney can review your case and determine whether you have a claim.

What About Marijuana?

Workers should be aware that the law surrounding drug testing is fairly complex when it comes to marijuana and cannabis use. It is currently legal to test for marijuana and other cannabinoids as part of a pre-employment drug test and deny employment based on the results. That said, effective next year, the Fair Employment and Housing Act (FEHA) will protect applicants from discrimination for their marijuana and cannabis use outside of the workplace and employers will no longer be able to deny employment if their drug test returns a positive result for these substances.

Workers should remember, however, that marijuana remains illegal under federal law. As a result, federal employers may continue to disqualify applicants from employment based on drug test results that are positive for marijuana or other cannabinoids.

The FEHA amendment will also protect current employees from being terminated as a result of marijuana use while the employee is off-duty and off-site. However, employees may be terminated for being under the influence of marijuana at work or for using marijuana on the job site.

Random Drug Testing

Random drug testing is illegal in California, having been deemed an impermissible violation of employees’ right to privacy. As a result, employers must provide employees with notice of their intent to administer a drug test. There is a rather significant exception to this rule, however – employers may conduct random drug testing where there are significant public safety concerns. For example, a construction company or trucking company may require their employees to undergo random drug and alcohol testing.

Of course, unscrupulous employers may abuse this “public safety” exception in order to implement discriminatory and invasive drug testing practices. If you believe you have been required to take a drug test in violation of your rights, contact a knowledgeable employment attorney for help.

“Reasonable Suspicion” Drug Testing

The courts have recognized an employer’s right to require drug testing in cases where they have reason to believe that an employee’s drug use is impacting their ability to do their job. However, these tests must be based on objective facts and reasonable inferences that would suggest the employee is abusing drugs or alcohol. Employees should be aware that this “reasonable suspicion” standard is less stringent than probable cause in a criminal investigation and can, therefore, be highly problematic. If you have been forced to take a drug test based on your employer’s reasonable suspicions, your rights may have been violated, and you should contact an employment attorney as soon as possible.

Illegal Drug Testing Practices

Drug testing practices can vary widely among employers, and it can be difficult to identify when an employer is violating the rights of job applicants and employees. This is why an employment attorney may be necessary to determine whether your rights have been violated. Regardless, here are some examples of drug testing practices that are clearly illegal:

Requiring only African-American male applicants to undergo drug testing
Using test results for prescription drugs to disqualify applicants with disabilities or health conditions
Requiring employees to pay for their drug tests
Publicly posting or announcing drug testing results
Informing an employee that they have been chosen for drug testing in front of other employees

Contact Attorneys for Employees Today

Whether you have been denied employment, fired for your test result, or terminated for refusing to take a test, we can identify whether or not your rights have been violated and hold your employer accountable. Do not let an illegal drug test damage your future – contact us today to schedule a consultation.

Drug Testing at Work: Know Your Rights