The California constitution guarantees workers the right to privacy at work.
Has your current or potential California employer asked you to undergo a drug test? Employer drug testing is subject to minimal restrictions under federal law: Although the federal government compels employers to conduct drug tests in a select safety-sensitive areas (such as transportation, aviation, and contractors with NASA and the Department of Defense), federal law does not mandate – or ban – drug tests in other industries. This region is mostly governed by state and local regulations.
California is one of the few states where the right to privacy is explicitly stated in the state constitution. This right applies not just to government workers, but also to private-sector employees. Drug testing is a violation of fundamental freedom, according to California courts, although it is not necessarily criminal. Testing is considered on a case-by-case basis, taking into account the employer’s motives for testing as well as the intrusion on the employee or candidate.
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Courts in California have ruled that companies may ask workers to take a drug test as a condition of employment. Courts have allowed this form of testing as long as an employer examines all candidates for specific employment opportunities and does not discriminate out certain applicants based on protected characteristics (such as race or disability).
The state of California has enacted a “compassionate use” legislation that permits citizens to consume marijuana for medicinal reasons. Users must get a doctor’s written clearance to consume marijuana under state law. Under state law, a patient with a valid prescription may not be punished for offences involving the use, possession, or production of a specified quantity of marijuana. The California Supreme Court, on the other hand, has ruled that an employer may reject to accept an applicant who tests positive for marijuana, even if the substance is properly prescribed for a handicap.
California Employee Regulations
California courts weigh the employer’s rationale for testing against the employee’s genuine expectation of privacy when assessing whether a drug test was allowed. California has acknowledged that workers have a greater entitlement in this state: Employees already have a job (and a work history the employer can use to assess their performance), which gives them more of a stake in the process and may give the business less of a need to test.
An employer that has a reasonable suspicion that an employee is taking drugs may be on safe legal footing when testing, as long as the suspicion is founded on objective facts. Random testing is more contentious, however courts have approved it for very dangerous situations.
Employees’ Notice and Procedural Rights
California law does not establish specified drug testing methodologies and standards. Employers are more likely to succeed if they take efforts to reduce workers’ privacy expectations because of the balancing test courts use to drug tests (for example, by adopting a written policy explaining when drug testing will be required).
Drug Testing-Related Legal Claims
Drug testing may cause various legal issues in addition to infringing on an employee’s or applicant’s constitutional right to privacy. Here are a few such examples:
Discrimination based on disability. The Americans with Disabilities Act protects an applicant or employee who is taking medicine for a disability (ADA). Some authorized pharmaceuticals show up on drug tests, whereas some illicit substances (such as opiates) are properly prescribed for specific ailments. If an application is denied due to a positive drug test and the applicant’s prescription was lawfully prescribed for a handicap, the employer may be held accountable (unless the drug is medical marijuana).
Other charges of discrimination An employer that targets certain categories of workers for drug testing, such as by color, age, or gender, may face a discrimination lawsuit.
Invasion of one’s privacy. Even if an employer has a valid cause to test, the manner in which the exam is conducted may breach employee privacy. For example, compelling workers to disrobe or produce a urine sample in front of others may be a breach of their privacy.
Defamation. If the employer publicizes that the employee tested positive and the employer has cause to believe that the test is inaccurate, the employee may have a legitimate claim for defamation. For example, if a retest revealed that the initial test was a false positive, or if the employee has challenged the original test, the employer may be accountable for disclosing the positive test findings to individuals who do not have a need to know.