Creating a drug testing policy in California is often considered to be critical in ensuring employee safety. However, must comply with both state and federal laws when putting the policy together. How can you establish an effective program that doesn’t cause potential legal headaches down the road?
“Before you start any testing, I highly recommend that you consult your legal counsel to ensure that you’re compliant with both state and federal law.” Marc Jacuzzi outlined in a recent CER webinar. “Design a testing program to withstand legal challenges.”
Questions to ask before creating a drug testing policy in California:
There are many questions that must be asked when formulating your drug testing policy. Here are some examples:
- Who will be tested? All staff? Only job applicants? Only employees in safety-sensitive positions? Each business will have different requirements.
- When will the tests be conducted? Pre-employment? After reasonable suspicion or for cause? Post-accidents? Randomly? Periodically? Post-rehabilitation?
- Which drugs will be tested for? Will you be testing applicants and employees only for illegal drugs? Or will you be testing employees for a broader range of substances, including alcohol and certain prescription drugs?
- How will the tests be conducted? Will you do it yourself? (This is not recommended). Will you use a certified laboratory? (This is recommended).
When you’re at this point in the process, it’s also important to remember that drug testing isn’t always the best answer to problems with employees.
“When you have reasonable suspicion [of drug use] you probably also have cause (i.e. performance issues).” Jacuzzi pointed out. In many cases, employers can use straight-forward discipline for inappropriate workplace behaviors—and doing so is much less risky than drug testing when it comes to avoiding discrimination or other charges.
If you use performance management and not testing, remember to keep any suspicions of drug use out of the conversation. When you’re conducting performance management conversations, for example, don’t ask about health or other reasons for the poor performance. Doing so just brings risk into the conversation. Just address the poor performance. Don’t ask why.
Creating a drug testing policy in California: Tips for implementation
If you’re going to have a drug testing policy in place, there are ways to ensure that it doesn’t increase your risk level. Here are some examples:
- Limit the invasion of privacy. “Drug testing policies that provide for limits on intrusiveness of the procedure (such as having the employee testing done at a medical facility by persons not connected with employer) and that ensure chain of custody for the sample is preserved—it’s a good thing to have.” Jacuzzi explained. This ensures that test results won’t get mixed up and it’s less invasive to employee’s privacy rights.
- Get consent in advance. Ideally, it should be a stand-alone, written drug-testing policy – separate from the handbook – that outlines the expectations and policy details. No matter your policy details, however, it’s also important to obtain an applicant’s or employee’s written consent prior to drug testing—have them sign off on the policy before it needs to be used.
- Don’t test for discriminatory reasons. Be cautious when implementing policy which mandates drug or alcohol testing merely because an employee has suffered an injury or filed a workers’ compensation claim, as these policies may be considered discriminatory.
- Follow local laws. Keep in mind that municipal codes may have greater restrictions than federal law. City ordinances can even be more restrictive than state laws. For example, the San Francisco Police Code, Section 3300A.5.(c), permits reasonable suspicion testing only for employees “in a position where such impairment presents a clear and present danger to physical safety of the employee, another employee, or a member of the public.”
- Have cause for the test. The most conservative approach in California is to avoid random testing altogether—in fact, random testing is illegal for employees not in safety-sensitive positions. Unless otherwise mandated by federal law for specific positions, it may be best to avoid random testing altogether.
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.