Reminders for Drug-Testing Policies
Question: My company is considering implementing a drug-testing policy for employees and applicants. Can my business require drug and/or alcohol testing for employees or applicants?
Answer: Yes, there are circumstances in which employers can require drug and/or alcohol testing. However, employers should be careful of the legal restrictions around imposing these types of programs.
California places significant limitations on drug testing. Additionally, the California Constitution also guarantees an individual’s right to privacy. This means that California courts balance an employee’s reasonable expectation of privacy against an employer’s legitimate interests, such as workplace safety, in requiring the test. As a result, employers should be aware of the limited instances in which testing can be imposed.
There are four general circumstances in which employers can require drug testing: (1) pre-employment screening, (2) reasonable suspicion testing, (3) post-accident testing, and (4) random testing.
Pre-Employment Testing
Most employers in California can require job applicants to successfully pass a pre-employment drug test as a condition of employment. This type of testing is valid when consistently applied to all applicants.
However, California employers should be aware of the legal restrictions related to testing and requesting information related to cannabis use. For example, under the California Fair Employment and Housing Act (FEHA), an employer may not refuse to hire someone based on a test result that only finds evidence of “nonpsychoactive cannabis metabolites.” A test that only finds evidence of nonpsychoactive cannabis metabolites” only indicates that someone has used cannabis in the past—it is not evidence of being under the influence of cannabis. In practice, this means that employers must ensure that they or their vendors are using the drug tests that test for active use of cannabis. Additionally, California employers are prohibited from requesting information from an applicant relating to the applicant’s prior use of cannabis.
Reasonable Suspicion Testing
California employers can require an employee to submit to drug or alcohol testing based on “reasonable suspicion.” Reasonable suspicion requires specific objective facts and observations, such as direct observation of drug use or possession or physical symptoms of being under the influence of drugs or alcohol. Mere “hunches” likely do not rise to the level of reasonable suspicion. For example, an employee’s association with another employee believed to use drugs or alcohol does not provide an objective level of reasonable suspicion that would allow testing. Reasonable suspicion testing should therefore be limited to clear, objective suspicion.
Post-Accident Testing
California courts have found that post-accident drug testing is permissible when an employer has reasonable suspicion that an employee involved in a workplace accident was under the influence of drugs and/or alcohol or if the accident was serious or fatal. As discussed above, reasonable suspicion must be based on specific facts and observations.
Random Testing
Random drug testing is only permissible in extremely limited circumstances such as employees in “safety sensitive” positions. For example, California courts have upheld random testing for truck drivers, gas pipeline workers, and correctional officers with regular contact with prisoners.
Given the sensitive nature of drug testing and the complex restrictions around when employers can impose testing, employers are encouraged to carefully review their hiring and discipline practices as well as any drug-testing programs to ensure compliance with California law. Employers with questions about their drug-testing policies or programs should contact their labor counsel.
What to Keep in Mind for Company Holiday Celebrations
Question: My company is planning a holiday party for our employees. Are there any legal considerations we should be aware of when planning the company holiday party?
Answer: Yes. As the holiday season approaches, companies planning holiday parties should consider various factors to ensure the gatherings are legally compliant.
Voluntary attendance: Making attendance at any end-of-year celebrations respects individual preferences and helps avoid potential legal issues related to wage-and-hour regulations. For example, making attendance mandatory would be considered hours worked since the employee is subject to the control of the employer and the employee would need to be compensated for that time. Additionally, some employees may have reservations about attending events associated with specific holidays or where alcohol is served. Mandatory attendance not only goes against these preferences but can also expose employers to additional liabilities for any injuries that may occur during the event. Employers should also make gift exchanges voluntary.
Responsible alcohol consumption: Opting to serve alcohol at your holiday party is a common choice, even for companies with a Drug and Alcohol Free Workplace policy. However, maintaining a balance and ensuring responsible consumption is important for the safety of all attendees. Employers have a responsibility to provide a safe environment, and in certain circumstances employers may be held liable for the actions of their employees even after they leave the holiday party, such as with alcohol-involved auto accidents. To mitigate risks, employers can consider measures such as distributing drink tickets, setting a cut-off time for alcohol service, and making food and water readily available to lessen the impact of alcohol. Employers may also consider covering the costs of transportation home, such as through a ride-share account.
Respectful conduct: Despite the more relaxed atmosphere of a holiday party, it is important to remember that all company policies, including anti-harassment and code of conduct guidelines, remain in effect. Attendees should adhere to these policies, and decorations and gifts should avoid anything offensive or sexually suggestive. Employers play a vital role in setting the tone by reminding employees of these policies before the event and reiterating them during any gift exchange announcements. In the event of a complaint of harassment or violation of the code of conduct, prompt and thorough investigation followed by appropriate remedial action is necessary.
Inclusive theme: To foster inclusivity and prevent anyone from feeling excluded or discriminated against, employers should avoid centering the party theme around a specific holiday or religion. Instead, a neutral theme would be advisable to create a welcoming atmosphere for all employees.
End-of-year discretionary bonuses: Employers who choose to give end-of-year discretionary bonuses should consider the legal implications of bonuses. Holiday bonuses, which are based on no objective criteria and are not routine, are a common type of discretionary bonuses. Employers should be careful to distinguish these discretionary bonuses from non-discretionary bonuses, in which employers promise to pay a bonus in return for a specific result, such as exceeding a minimum sales figure. Non-discretionary bonuses must be included in the regular rate of pay for the purpose of overtime calculations for nonexempt employees. Because of the legal implications, employers should be mindful in distinguishing that the end-of-year bonus or gift is discretionary.
Back to School: School-Related Leaves
Question: Many of my staff members have children who went back to school this month. What are my legal obligations as an employer if an employee wants to take time off to go to their child’s school?
Answer: It depends on the size of the company and the reason for the employee’s request.
In California, employers who employ 25 or more employees at the same location must allow eligible employees to take up to 40 hours of unpaid leave each year for “child-related activities.”
An employee is eligible for leave for “child-related activities” if he or she is a parent, guardian, stepparent, foster parent, grandparent, or person who stands in place of a parent, to a child or children of kindergarten age or grades 1 to 12. If both parents are employed by the same employer at the same location, only the parent who first gave notice to the employer is entitled to take leave, but the other parent may also take leave with the employer’s approval.
Employees may take leave to attend school-related activities such as finding, enrolling, or reenrolling the child in a school or with a licensed child care provider, or participating in activities of the school or licensed child care provider. Employees may also take leave to address a child care provider or school emergency. An “emergency” means that the employee’s child cannot remain in a school or with a child care provider because of any of the following: the school or child care provider has requested that the child be picked up or has an attendance policy that prohibits the child from attending or requires that the child be picked up; behavioral or discipline problems; unexpected closure or unavailability of the school or child care provider; or a natural disaster such as a fire, earthquake, or flood.
For planned absences, such as participating in school activities, employees must provide the employer with reasonable notice prior to the absence. Time off for planned absences must not exceed eight hours in any calendar month.
For absences related to a school emergency, employees must give notice as soon as possible.
Employees, if requested by the employer, must provide documentation from the school or child care provider as proof that the employee engaged in child-related activities. The documentation should be whatever written verification the school or child care provider deems appropriate and reasonable and must include the specific date and time of the activity.
Employees must use existing vacation, personal leave, or paid time off to participate in school-related leave unless otherwise provided by a collective bargaining agreement. However, the employee may also use unpaid time off for these absences.
In addition to allowing leave for school-related activities and emergencies, all employers—regardless of size—may need to provide unpaid time off to employees who need to attend a child’s suspension or expulsion meeting or to comply with a school’s suspension or expulsion requirements. Employees who take leave for these reasons must give their employer reasonable notice for the absence.
Finally, employees may be entitled to leave to care for a child’s illness or injury under California’s Healthy Workplace, Healthy Family Act, which allows employees to use their amount of accrued and available sick leave to care for a family member, including a sick child, stepchild, foster child, or child whom the employee stands in place of a parent.
Employers should contact their labor counsel if they have questions about leaves of absence related to school activities and appearances.
Form I-9 Updates
Question: I heard the federal government recently made changes to Form I-9. Can you explain what this means for employers when completing the I-9 process?
Answer: On April 2, 2025, U.S. Citizenship and Immigration Services (“USCIS”) announced changes to Form I-9, which is a federal form used to verify an individual’s identity and authorization to work in the United States. USCIS periodically releases new editions of forms, and employers must use the current form edition or editions in effect. The recent edition includes minor changes to the Form I-9 to align with statutory language and updated privacy notice language. With this latest update, employers should consider implementing the new Form I-9 into their employment eligibility verification process immediately, or no later than July 31, 2026.
Every employer, regardless of size, must complete Form I-9 each time they hire an individual to perform labor or services in the United States in return for wages or other remuneration (e.g., food or lodging). Employers must provide applicants with the entire Form I-9, including instructions and List of Acceptable Documents. The I-9 process should occur after a conditional job offer has been made and before the applicant starts work.
The new Form I-9 has an edition date of January 20, 2025 and expiration date of May 31, 2027. The edition date is found in the bottom left corner of the form, and the expiration date is found in the top right corner. For the time being, employers may continue to use the Form I-s with the edition date of August 1, 2023. Employees who opt to continue using the prior forms should be aware that there are two versions of the edition dated August 1, 2023. One version expires May 31, 2027, while the other version expires July 31, 2026.
The changes to the latest form include renaming the fourth checkbox in Section 1 to “An alien authorized to work,” revising the descriptions of two List B documents in the List of Acceptable Documents, and adding statutory language and a revised Department of Homeland Security privacy notice to the form’s instructions.
Employers using E-Verify, an internet-based system used to complete Form I-9, will notice the updated language in the E-Verify system. This means that employers using E-Verify must select “An alien authorized to work” in E-Verify if the employee attests on Form I-9 as “A noncitizen authorized to work.” Additionally, E-Verify cases will display “An alien authorized to work,” while employees and employers may continue to see “A noncitizen authorized to work” on Form I-9, depending on the form edition being used.
If an employee’s work authorization needs updating or reverifying and the employee’s previous update or reverification was completed on a Form I-9 version that is no longer valid, the employer must complete Supplement B of the new Form I-9 and attach it to the employee’s original Form I-9.
Employers can download the latest edition at https://www.uscis.gov/i-9.
While previous editions of Form I-9 remain valid until their respective expiration dates on in 2026 and 2027, employers are encouraged to begin implementing the new edition into their Form I-9 process and preparing personnel who are responsible for completing Form I-9. Incorporating the new Form I-9 immediately can help ensure future Form I-9 compliance in the event of an I-9 inspection audit.
Employers with questions about the I-9 form or process may wish to consult with their labor counsel.
Political Activity and Speech in the Workplace
Question: A few of my employees want to take time off work to attend political rallies. I have also overheard political discussions in the office. What are my rights as an employer to prevent my staff’s political activity from negatively impacting the office?
Answer: Some employers may want to support and recognize their employees’ political activities and speech. However, other employers may find that it is in the best interest of the business and employees to place certain limits on political expression at work. Employers who want to impose political-related limitations in the workplace should keep in mind the various protections for employee political activity.
Employees have a general right to engage in political activity. California Labor Code section 1101 prohibits an employer from adopting or enforcing policies that interfere with an employee’s participation or engagement in politics. Such participation or engagement can include attending political rallies, running for public office, or joining political organizations. Additionally, Labor Code section 1102 prohibits an employer from threatening an employee with a discharge or loss of employment as a means of coercing or influencing the employee’s political activities.
These protections do not mean that employers cannot have policies that place limits on political speech or activity in the workplace. For example, California law does not require employers to provide time off to employees who wish to attend a rally. Accordingly, a policy that requires employees to request time off for any purpose (including political activities) is appropriate to ensure adequate staffing or to address other business needs. However, employers should be conscious of selective enforcement of policies that may be construed as targeted at political activity or aimed at a certain political view. The key is to treat all requests for time off the same.
Employers may also prohibit disruptive political speech in the workplace. Sometimes, political discussions during working hours can negatively impact the office and its staff. An employer in this situation may implement a policy that prohibits disruptive speech (which includes political speech) during working time or in working areas. Though employees have a general right to engage in political activities, they do not have a right to be disruptive, including yelling, shouting, or arguing. The key to a policy like this is to limit it to working time and working hours and prohibit all disruptive speech (whether or not political).
Employers should also be aware of their speech regarding political matters. California Labor Code section 1137 restricts employers from taking adverse action against employees for declining to attend employer-sponsored meetings or refusing to participate, receive, or listen to the employer’s communications about the employer’s opinion on religious or political matters. Political matters are defined broadly as matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization. An employee who is working at the time of the meeting and elects not to attend a meeting must continue to be paid while the meeting is held.
Political discussions often involve delicate issues. While these discussions are generally protected, employers have some rights to prevent these discussions from negatively impacting the workplace. Employers with questions about their policies or California’s laws relating to their employees’ political activities may contact their labor counsel or HR consultant.
Employer’s Obligations Related to School Leave
Question: A staff member has requested time off to participate in activities at their child’s school. Am I required to approve this request for time off?
Answer: Maybe, depending on the size of your company and the reason for the leave request.
Employers who employ 25 or more employees at the same location must allow eligible employees to take up to 40 hours of unpaid leave each year for participation in “school-related activities” or to deal with a school or childcare provider emergency.
- School-related activities include finding, enrolling, or reenrolling the child in a school or with a licensed childcare provider, or to participate in school or childcare provider activities.
- An “emergency” means that the employee’s child cannot remain in school or at the childcare provider. This includes the following reasons: there is a behavioral or disciplinary problem; there is a closure or the school or provider is unexpectedly unavailable; there has been a natural disaster such as a fire, earthquake, or flood; or the school or provider has requested that the child be picked up or has an attendance policy that prohibits the child from attending or requires the child to be picked up.
To be eligible for leave under the above scenarios, the employee must be a parent, guardian, stepparent, foster parent, grandparent, or a person who stands in place of a parent, to a child or children of kindergarten age or a grade between 1 and 12. If more than one parent of a child is employed by the same employer at the same location, the parent who first gave notice to the employer is entitled to take leave, but an employer may approve the other parent’s leave.
The employee must provide the employer with reasonable notice before a planned absence. If the time off is needed for an emergency reason listed above, employees are required to give notice as soon as possible.
At the request of an employer, an employee must provide documentation from the school or childcare provider as proof that the employee participated in the activities on a specific date and time. Documentation is whatever written verification the school or childcare provider deems appropriate and reasonable.
Time off for these activities may not exceed 8 hours in any calendar month.
Employees must use existing vacation, personal leave, or paid time off (PTO) to participate in activities of the child’s school or childcare provider unless otherwise provided by a collective bargaining agreement. However, the employee may also use unpaid time off to participate in these activities if the employer provides it.
Moreover, all employers (regardless of size) may need to provide with time off to attend a child’s suspension/expulsion meeting or to comply with a school’s suspension/expulsion requirements. The employee must give their employer reasonable notice of the need to take time off for this purpose. In addition, employees may be entitled to leave to care for a child’s illness or injury.
Employers should make sure their Human Resources personnel, managers, and supervisors are aware of the available school-related leaves to ensure compliance with applicable laws. Employers with specific questions about these leaves may also contact their legal counsel.