What laws restrict drug testing policies in California?

“Drug testing of private sector employees and applicants in California implicates the right of privacy set forth in Article 1, Section 1 of the California Constitution.” Marc Jacuzzi told us in a recent CER webinar. “That is where individual employee rights lie for private employers.” But what about safety concerns? Do they trump privacy concerns?

“The courts have tried to balance the privacy rights of individual employees and applicants against the employer’s legitimate safety concerns. And they’ve done this through a series of decisions addressing various types of drug testing . . . The California courts have provided a framework for employers in this area.” Jacuzzi advised.

Restricting drug testing policies in California: Case examples

So, what cases have provided this framework for California employers in regards to drug testing? Here are some examples of cases related to the various aspects of drug testing:

• Pre-employment testing. In the case of Wilkinson v. Times Mirror Corp., the court permitted the testing of job applicants, finding that they have a lesser expectation of privacy than employees.
• Conditional job offers. The case of Pilkington Barnes Hind v. Superior Court points out the importance of conditioning job offers on successfully passing a drug test. A manager received a conditional offer of employment that required successfully passing a drug test, which he did not take until after he had relocated and started work. He failed the test and was discharged. The discharged manager claimed that he had been an employee, who could not be tested unless there was reasonable suspicion. The court disagreed. Even though he had started work, he was still considered an applicant whose drug test did not require reasonable suspicion.
• Random testing of current employees who are not in security- or safety-sensitive positions. The rule here is that random testing is never allowed in these cases. There were two important cases: Luck v. Southern Pacific Transportation Co. and Semore v. Pool. The result is that random testing of employees who are not in safety-sensitive positions is considered to be unlawful.
• Reasonable suspicion. In the case of Kraslawky v. Upper Deck Co.the court addressed – but did not completely answer – whether an employee (an executive secretary who was neither in a safety nor security-sensitive position) may be tested on reasonable suspicion. The appellate court did not dispute the lawfulness of the reasonable suspicion testing where the secretary had agreed as a condition of employment to suspicion-based testing.It is unclear whether the court would have reached the same conclusion absent the employee’s voluntary agreement to reasonable suspicion drug testing. Also, the California Supreme Court has not directly addressed whether non-safety-sensitive employees may be tested on reasonable suspicion in the private sector.
• Specific timing without suspicion. In the case of Loder v. City of Glendale, the California Supreme Court invalidated a city’s suspicion-less drug testing program for employees who were promoted. The court ruled that testing current employees without reasonable suspicion violated the Fourth Amendment (which applies only to a government employer, but not a private sector employer). Although the court did not reach the privacy issue under the California Constitution, the court presumably would have reached the same conclusion on the basis of the state constitution (which does apply to all California private employers).This leaves an ambiguous situation because the Loder decision also implied (but did not expressly hold) that it would approve of reasonable suspicion testing for employees not in safety-sensitive positions.
• Random testing safety-sensitive. In Smith v. Fresno Irrigation District the court determined whether the position was safety-sensitive by considering the degree, severity and immediacy of harm posed to the individual, coworkers and the public. Although the Fresno Irrigation District is a public sector employer, these factors may also be used by private employers to evaluate which of their employees may be considered as having safety-sensitive positions for which random testing is permitted in California.

The above information is excerpted from the webinar “Drug and Alcohol Testing in California: Effective Strategies that Protect Your Company and Employees.” To register for a future webinar, visit CER webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.