The California law on drug testing is perhaps the most unsettled of any state’s drug-testing law. California drug-testing restrictions are based on judicial decisions balancing employers’ rights to test against employees’ state constitutional right to privacy. Close attention should be paid to the details of the cases cited below, as well as to ongoing developments in the case law. Several cases should provide guidance to employers.
Preemployment testing is permissible following Loder v. City of Glendale, at least in conjunction with a preemployment physical. Although Loder challenged a public employer’s program, the opinion is relevant to private-sector employers because California’s right to privacy—which governs the conduct of private as well as public actors—guided the California Supreme Court’s decision as to the permissibility of preemployment testing. The Court of Appeal’s decision in Pilkington Barnes Hind v. SuperiorCourt (p. 58) further buttresses the status of preemployment testing.
The California Supreme Court’s key language from Hill v. NCAA established a balancing test for determining whether private-sector drug testing meets state privacy requirements:
“[An] invasion of a privacy interest is not a violation of the state constitutional
right to privacy if the invasion is justified by a competing interest. Legitimate
interests derive from the legally authorized and socially beneficial activities
of government and private entities.” (emphasis added).
California employers’ task appears to be: demonstrate that the company’s drug-testing program is justified by a “competing interest.” (The safety, health, and well-being of employees, those who use a company’s products or services, and those who come into contact with its workplaces or property—such as over-the-road vehicles—may qualify as “competing interests” that would outweigh an individual’s right of privacy in a balancing test.)
As for random drug testing, employers’ rights in California remain on very uncertain legal footing—especially for random testing of employees in non-safety-sensitive jobs. Until the courts give more definition to the law, a prudent strategy is to assume that unless the employee works in a safety- or security-sensitive position, random drug testing is subject to legal challenge. Employers should review the Court of Appeal decision Smith v. Fresno Irrigation District (p. 57) for guidance on randomly testing safety-sensitive employees.
Since the publication of the 14th edition, the California Supreme Court issued a significant decision related to the California Compassionate Use Act (“CUA”) in Ross v. Ragingwire Telecomms., Inc. In Ross, the California Supreme Court reaffirmed the legitimacy of pre-employment testing in upholding the termination of an employee who tested positive for marijuana use finding that neither California’s Fair Employment and Housing Act (“FEHA”) nor public policy prohibits the termination of a disabled employee who uses “medical marijuana.” The Court also found that the California Compassionate
Use Act did not require employers to accommodate marijuana use by their employees.