Drug testing of employees and applicants is one of the most sensitive and complicated issues that can occur in the workplace. While there are indeed considerations to be made for drug testing employees in certain industries, it can be a slippery slope. Too stringent of a drug testing policy can quickly turn into invasion of privacy and violation of trust by an employer. When it comes to what is and is not considered to be appropriate drug testing in the California workplace, there are different laws and regulations that relate to fair notice, accuracy, and discrimination.
As with any workplace issue, it is extremely important that California employees and job applicants fully understand their rights. To that end, Maison Law and their team have a deep knowledge of California law as it relates to drug testing and can help protect the rights of both employees and applicants. They are proud to serve clients all throughout California and offer free initial case evaluations.
Generally, random drug testing refers to when an employee is subjected to a medical examination that is seeking to detect the presence of drugs and other illegal substances in the employee’s bloodstream. This is most commonly achieved by taking a urine sample or a tube of their saliva to a medical professional for testing purposes.
This procedure is considered random when the employer:
In California, employers can only conduct random drug tests in three primary scenarios:
This last scenario is obviously tricky. What exactly constitutes a reasonable suspicion on the part of the employer can shift significantly from job to job. Employers must provide fact-based reasons for drug testing an employee under “reasonable suspicion”, which is also known as “for cause” drug testing. Most commonly, these drug tests occur after a workplace accident or injury.
Until recently, California law did not explicitly protect specific individuals as it relates to drug and alcohol-at least initially. However, an amendment-Assembly Bill 2188-to the California Fair Employment and Housing Act (FEHA) made two important changes to the FEHA:
Under the new amendment, California employees are now protected from retaliation or discrimination based on legal drug use. Cannabis is explicitly protected, as it is legal to use in California. This could also extend to prescription medication, provided that the employee is using it as directed. Specifically, the FEHA outlaws any of the following “adverse” employment actions to be taken:
Despite this legal protection, an employer has a right to fire any employee that fails a lawfully and correctly administered drug test. Similarly, employers can also refuse to hire a job applicant if they fail their pre-employment drug test.
Under the FEHA, an employee may be able to bring a lawsuit against their employer if they feel that the drug test was administered illegally or if the employer failed to follow the proper procedure. Discrimination lawsuits fall under wrongful termination claims, which can mean recovering:
On top of a wrongful termination claim, these employees can also potentially add in claims for invasion of privacy or defamation.
Any employee that feels they have been discriminated against or wrongfully terminated after being drug tested by their employer should not hesitate to reach out to Maison Law. Their team of skilled employment lawyers can help them understand their rights and how to approach their case.
No employee should have to suffer discrimination by their employer, especially when they are simply trying to do their job. Even though there are instances where an employer can drug test their employees or potential job candidates, the results should be kept confidential and not be used against them. Attorney Martin Gasparian and his firm, Maison Law, prides themselves on strongly advocating for the rights of every California employee. Contact Maison Law today to schedule a free consultation to find out more.