California does not have a statute that specifically regulates drug testing in the private sector. However, there is case law that affects who can be tested and under what circumstances. Additionally, two municipalities, San Francisco and Berkeley, have ordinances that restrict drug testing in a number of ways. Employers should consider legal decisions related to drug testing prior to establishing a drug-free workplace program that includes any type of drug testing.

Key Case Law:
Loder vs. City of Glendale—pre-employment testing is permissible, at least as part of a physical exam. This was a public sector case with ramifications for the private sector inasmuch as the state’s privacy laws apply to both sectors. Employers must demonstrate a “competing interest” such as a concern for safety in order to justify drug testing.

Smith v. Fresno Irrigation District—The Court of Appeals found in favor of the employer’s random testing of safety-sensitive workers because the testing process was non-intrusive enough, the workers had been given plenty of notice prior to the start of testing, and there was a legitimate and justified business interest concerning the safety of the employer’s workers as well as others.

Privacy Rights and Drug Testing
Using the state’s constitution as a basis for argument, California courts have ruled that employees have broad privacy rights. Generally speaking, drug and alcohol testing have been deemed to be an invasion of privacy. Therefore, an employer’s request for a drug or alcohol test must be “reasonable.” An employer can require a drug or alcohol test whenever the employer has reasonable suspicion that the employee may be under the influence of drugs or alcohol while at work. However, “suspicionless" types of testing are prohibited unless the employer has a reasonable business justification. The California courts have ruled that safety is a sufficient business reason for an employer to perform a suspicionless test.

The bottom line is that the employer must be able to demonstrate that the drug test requirement outweighs the individual’s expectation of a right to privacy.

For example, an employer most likely can perform a suspicionless test, such as a random test, of employees in safety-sensitive occupations. Yet, that same employer most likely cannot conduct random testing of office staff or other workers who do not perform safety-sensitive functions.

On-Site Drug Testing
Most testing methods are permissible. Per the state’s laboratory licensing law, on-site (POCT) testing is probably not permitted. However, various sources claim that the Department of Public Health does not actively enforce this law. Nonetheless, on-site testing may be subject to legal challenge. Lab-based urine and oral fluid testing are permissible

Pre-employment Testing
Pre-employment testing has been upheld by the Court, at least as part of a pre-employment physical exam. The best rule is to be fair and consistent. If one person is subject to a drug screen than another person applying for the same position should be subject to the same drug screen.

Accommodation for Rehabilitation
Companies regularly employing 25 or more workers must reasonably accommodate an employee who wishes to voluntarily participate in a treatment or rehabilitation program as long as it does not impose unreasonable hardship on the employer. The employer is not required to pay for such services or provide paid leave to the individual. Employees may use sick leave to which he or she is rightfully entitled. The employer must protect the confidentiality of individuals who voluntarily choose to enter substance abuse rehabilitation.

California Drug-Free Workplace Act
Under the California Drug-Free Workplace Act (CAL GOV’T CODE SS 8350-8357 [1997]) state contractors and grantees must certify that they have published and distributed a policy which states that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited. The policy must also state the consequences for violations. Additionally, employers must establish a drug awareness program for employees regarding the employer’s policy, the dangers of drug abuse, the availability of counseling programs, and the penalties for violating the policy.

Motor Carriers
Motor carriers must comply with the U.S. Department of Transportation drug and alcohol testing regulations, and provide copies of records pertaining to their drug and alcohol testing program upon request by the California Highway Patrol. See: CAL. CIV. CODE S 3333.7 (Supp. 2004).