Although California law does permit employers to drug test their employees, the random drug testing of employees has a different set of rules. Here is everything an employee needs to know about random drug testing at work.

Employee drug testing often conflicts with their right to privacy, which can be found in Article 1, Section 1 of the California Constitution. However, whether a random drug test administered by an employer is legal can be dependent on several other factors such as the way the test is administered, if the employee was given a notice before, and the equipment being used. Because the legality of the random drug test at work is circumstantial, it is crucial for an employee to know their rights to privacy in respect to random drug testing.

When Can Employers Require Random Drug Testing?

Generally, California employers are not permitted to require their employees to be subject to random drug testing. The legality of a random drug test is usually reliant on a balancing test, that is if the employee’s right to privacy is outweighed by the employer’s duty to keep the workplace safe and drug-free. However, there are a few exceptions to this general rule. Here are some of the limited circumstances where an employer can implement random drug testing.

1. Federal authorities mandate specific California employers to establish a random drug testing program.

Federal authorities can require random controlled substances and drug testing for specific federal departments such as:

  • the Department of Transportation,
  • Federal Motor Carrier Safety Administration,
  • Federal Railroad Administration,
  • Federal Aviation Administration,
  • Federal Transit Administration,
  • Pipeline and Hazardous Materials Safety Administration,
  • and the United States Coast Guard.

2. A California employer demonstrates that the position their employee works in meets a high standard, where any influence of drugs could pose an extreme health threat.

A California employer can only establish random drug testing if:

  • they can demonstrate that the employee holds a safety-sensitive position AND
  • that working under the influence of drugs would pose imminent safety OR
  • a health threat with irremediable consequences.

Some examples of employee positions that have met this standard are nuclear power plant workers, correctional officers, hazardous pipeline employees, and government employees with secret national security.

3. The employer has reasonable suspicion that a specific employee is under the influence of drugs or other controlled substances.

The employer must be able to document objective facts that would suggest that this individual is under the influence and is in violation of company policy.

Related: Prosecution of Women for Drug-Related Offenses

Reasonable Suspicion Testing

An employer who wishes to randomly drug test their employees for reasonable suspicion must be able to demonstrate that their reasoning is substantial. There are three types of signs that can lead an employer to have reasonable suspicion that an employee is under the influence of drugs, physical signs, behavioral signs, and psychological signs. Here are some examples of each that an employer must prove in order to meet the standard of having reasonable suspicion.

  • Physical signs
    • Bloodshot eyes/dilated pupils,
    • Slurred speech,
    • Unsteady walk/uncoordinated movements,
    • Shakes or tremors,
    • Unexplained sweating or shivering,
    • Fidgeting/inability to sit still,
    • Sleeping at work or difficulty staying awake,
    • Unusual body or breath odor,
    • Deterioration in appearance/grooming.
  • Behavioral signs
    • Attendance problems such as tardiness, a pattern of absences, or excessive absenteeism.
    • A decline in performance or productivity at work.
    • Acting withdrawn from others, secretive.
    • Money issues and/or borrowing or stealing money from others.
  • Psychological signs
    • Unexplained changes in personality, attitude, or demeanor.
    • Sudden and severe mood changes, irritability, angry outbursts, or inappropriate laughing.
    • Unexplained fear or paranoia.
    • Inability to focus or concentrate.

Related: Can My Boss Force Me to Get a COVID-19 Test?

What Rights Do Employees Have if They Are Randomly Drug Tested at Work?

Employees still possess many rights even if they are undergoing a random drug test. Here are some rights that every employee will maintain even if they are required to take a random drug test:

  • The right to be free from harassment and employment discrimination.
  • The right to privacy, including the right to be free from defamation as a result of being required to take a drug test.
  • The right to be free from random drug testing unless they fall within the criteria listed above.
  • The right to reasonable accommodation for voluntary entry into a drug rehabilitation program.
  • The right to use legally prescribed pharmaceutical medications.

Any employee who feels like their rights have been infringed upon when being required to take a random drug test by their employer always has the option to sue. It is recommended that an employee who is considering suing hires an attorney to help determine if they have a viable claim and to aid them in the following legal process.

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If you or a loved one is an employee looking to know more about their rights during random drug testing at work, get your free consultation with one of our Employment Attorneys today!