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Are Employers Allowed to Drug Test?

Are Employers Allowed to Drug Test Job Applicants and Current Employees in California?

It is generally known that most employers will have job applicants or current employees undergo drug tests as a part of the hiring process or during employment. However, the law places many limits on how and when an employer can require drug tests. For example, individuals have constitutional rights to privacy and protection against unreasonable searches and seizures, and protection against discrimination due to characteristics such as race and disability.

Drug tests can be administered through examining an employee’s urine, blood, hair, breath, saliva, and perspiration. Testing with hair can show a history of last drug use for up to six months. Under California law, employers have to disclose if a drug test is a part of the hiring process, and a pre-employment drug test must be minimally intrusive and access to the drug test results must be safeguarded. Drug tests that are overly intrusive violate employees’ rights to privacy. For example, it is legal for drug test administrators to listen outside the stall while an employee provides a urine sample, but it is illegal for them to watch.

It is legal, and at times required by federal law, for employees working in public safety jobs such as bus drivers, police officers, and pilots, to be subject to periodic drug tests due to the nature of their work. If an employee does not work in public safety, their employer can only justify implementing a pre-employment drug test if there is a special need or concrete danger, such as if the job applicant will be working with a population that has a drug problem, if the job applicant will be in charge of confiscating drugs, or if the job applicant will be expected to perform high-risk and safety-sensitive tasks such as operating vehicles or transporting hazardous materials. It is illegal for an employer to administer drug tests to job applicants or current employees if they cannot demonstrate any of the above-mentioned special conditions for doing so.

The laws are generally less strict for requiring current employees to take drug tests than for job applicants, who have a less reasonable expectation of privacy. However, employers must treat all employees as equal when administering drug tests. It is illegal, for example, for an employer to only ask employees of a certain race or ethnicity to undergo drug testing, since that would be racial discrimination. If an employer is suspicious that an employee’s job performance may be impaired by drug use, their suspicion must be based on reasonable and credible facts.

It is illegal for employers to discriminate against employees due to disability or drug addiction, which is classified as a disability under the Americans with Disabilities Act (ADA) if an employee is no longer using the drug. Employers cannot discriminate against employees who are receiving medical treatment and are prescribed medicine for a disability or medical condition. While employers are allowed to ask job applicants if they use illegal drugs, they are not allowed to make an employment decision based on past drug addiction if an applicant is no longer using the drug. If a current employee tests positive for illegal substances but is no longer using the substance and is in rehabilitation, their employer cannot terminate them. California law states that employers who have 25 or more employees must give reasonable accommodations to employees who are in drug or alcohol rehabilitation, as well as safeguard this information to protect the privacy of the employees.

If you believe than an employer is discriminating against you or subjecting you to illegal drug tests, or have further questions regarding the laws surrounding drug testing in employment, feel free to give our office a call at (323) 208-9171 or email us at info@kyletodd.com.

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