Employers do everything they can to ensure that the employees they hire are reliable non-criminals. They have a vested interest in you coming to work every day, getting along with your coworkers, and not doing anything that would make the company look bad. So, understandably, most employers don’t want drug addicts and alcoholics on staff.
But that also doesn’t give them a right to test employees at random or whenever they want to. Here in California, mostly employers are not allowed to administer or require drug tests. There are actually only a few situations where they are allowed to use drug tests, and knowing what these are can help you defend your rights in all other situations.
Today, we’re here to highlight exactly when your employer is allowed to test you for drugs or alcohol.
Allowing for Prescriptions
For all of you worried about your Vicodin, marijuana, or antihistamines, you can relax. California has a Compassionate Use law that requires employers not to hold prescription medicine against someone in a drug test. If you have been prescribed a controlled substance to treat a medical condition, then results that reveal your prescription use will not be considered disqualifications for any drug test.
Job Applicant Screening
The first situation where employers are allowed to do drug screening is hiring. But they can’t have everyone perform a drug test. In fact, employers can only require a drug test after all interviews and final negotiations are through and they have made a job offer. The offer can then be contingent on the results of the drug test. Both parties agree on the offer and — only then — can you be asked to submit to drug testing. They also must test every candidate who is offered this position, not selectively choose who will be tested.
For Annual Checkups
Most employers have the right to require their staff to do one physical checkup per year. You see the doctor they ask you to see. You stick out your tongue. Maybe run a few steps. Most employers don’t take advantage of this option. But if they did, they could also ask you to go through one annual drug test during this checkup.
But only if they give you written notice that the checkup will include a drug test. And only if that notice comes two weeks or more before the checkup itself.
Expectation of Privacy
In the workplace, you may have something called an ‘Expectation of Privacy’. What this means is that, in your job, you can reasonably expect not to be bothered about your health, what you’ve eaten or drank, or what you do in your off time. Some jobs have less ‘expectation of privacy’ than others. Any job where you wear a body cam, for example, has no expectation of privacy during body-cam hours.
A bus driver — who is responsible for the lives of children and is in a crowded bus all day — has less expectation of privacy than an accountant in a private office. So if an employer wants to demand a drugs and alcohol test, their justification is weighed legally against your expectation of privacy.
Reasonable Suspicion of Drug Use
Employers -are- allowed to require a spontaneous drug test if they have reasonable suspicion of drug use. But stop there, because ‘Reasonable Suspicion’ is a legal term not open to wide interpretation. Your employer needs evidence that would hold up in court. And, indeed, you could take the to court.
An employee seeming down and distracted is not reasonable suspicion of drug or alcohol use. Empty bottles in their desk drawer would be. The strength of your employer’s evidence would also be weighed against your expectation of privacy. Seeming disoriented at work may well be enough to test the bus driver, but not the accountant.
Security and Random Testing
Of course, sometimes a job really does require you to be fully sober and capable 100% of the time. For these positions, employers may be allowed to enact random drug testing. But usually not for the entire facility, just key employees whose performance quality is incredibly important to the role. And possibly to the lives and security of others.
Surgeons, bodyguards, and powerline technicians to name three very different jobs that all have a very high security requirement. And, of course, everyone with an actual government security clearance. If a job requires a great deal of attention and/or security, there is a chance that your employer will be legally permitted and choose to enact random drug testing.
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If your employer is asking staff to submit to drug tests, it’s important to know your rights. There are very few situations where drug tests are appropriate in the workplace. Only if one of the above listed qualifications is true can your employer ask even one person to take a drug test. Especially if there was no warning or information that this would be required as part of the job.
Here at Aiman-Smith and Marcy, we have spent years defending professionals from unfair employment practices. Whether your employer is breaking the law on purpose or is simply making a terrible management mistake, you can make it right by getting an employment lawyer involved. For more information about your rights involving workplace drug testing or to consult on your own workplace situation, contact us today!
