Drug Testing in the Workplace

Posted on March 26, 2018

At a recent labor law seminar, a labor attorney shared how many of his clients in Colorado had to eliminate marijuana from their pre-employment drug screening because they found that none of their candidates were passing the drug screening and they were having difficulty hiring.

Now that marijuana has been legalized in California, I imagine that many employers are wondering how this will impact their drug testing policies. Those employers who don’t currently have drug testing policies may be considering implementing one. Either way, employers must understand the legal requirements that apply to workplace drug testing.

When can you test?

California’s Constitution contains a right to privacy that can be violated by workplace drug testing. Employers have to be very cautious about when and how they conduct drug testing so that they do not violate that constitutional right. A key issue related to drug testing is when the test occurs; your ability to conduct drug tests varies depending on whether you test in the pre-employment stage or during employment.

Employers can conduct pre-employment drug testing and require applicants to pass a pre-employment drug test. This type of testing is “suspicionless,” meaning it is not based on any suspicion that the person has used drugs. Pre-employment drug tests should be conducted pursuant to a drug-free workplace policy.

If you require pre-employment drug tests, communicate that requirement to applicants during the interview process. Also, obtain the applicant’s consent to the pre-employment drug test. You should not conduct pre-employment drug testing until after you make a job offer to an applicant. Provide the applicant with a clearly drafted offer letter which explains that the job offer is contingent on the applicant passing the drug test; i.e., if the applicant doesn’t pass the drug test, the offer will be withdrawn.

If you use pre-employment drug testing, you should be consistent in who you test. You can test all applicants for employment or all applicants for certain positions. Do not test some applicants and not others, and do not pick and choose which applicants you will test. Doing so could expose you to a claim that you are selecting applicants for testing based on discriminatory reasons, such as race or ethnicity.

The ability to conduct drug testing changes once someone begins working for the company. Once they are an employee, you can conduct drug tests only if you have a reasonable suspicion that the employee is impaired. What constitutes “reasonable suspicion” will depend on the circumstances. Generally, you should have specific, objective evidence that the employee is impaired. Possible signs of impairment could include an employee slurring his words or having trouble walking or performing job duties, smelling like alcohol or marijuana, or showing other physical signs of impairment. 

Reasonable suspicion is more than just a belief that someone may be using drugs or hearing from another employee that someone may be using. If you have a reasonable suspicion that an employee is impaired, you should send the employee to a facility to be tested. Do not let the employee drive him or herself to be tested; either drive the employee or arrange for transportation. If he/she fails the drug test, you may terminate employment.

Random or suspicionless, drug testing of current employees is not allowed except for employers who are subject to federal Department of Transportation regulations and for employers in certain highly regulated industries. In addition, random testing of employees in certain security or safety positions may be allowed if the employee’s privacy interests are outweighed by the employer’s safety interests.

Legalized Marijuana

Under California’s Compassionate Use Act (CUA), individuals can obtain and use marijuana for medical purposes as directed by a physician, and Proposition 64 made the recreational use of marijuana legal as well. However, neither the CUA nor Proposition 64 excuses an applicant’s marijuana use for the purposes of workplace drug testing. You can still deny employment to an applicant who tests positive for marijuana, even if the applicant has a medical marijuana card. 

Best Practices:

If you already have a drug-free workplace policy in place, you may want to recirculate it to employees with a reminder that marijuana use is still prohibited in the workplace. Your policy should explain that you prohibit drug and alcohol use by employees while working, discuss the consequences of not complying with the policy and explain the requirements of your drug testing policy. 

If you don’t have a drug- and alcohol-free workplace policy, consider whether such a policy may be appropriate for your workplace. 

Train supervisors about your policy, including how to identify signs of drug or alcohol impairment. 

Lauren Sims is the article’s author and the Director of Human Resources. 

Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

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