Question:

My Company is expanding, and I am going to be hiring some new employees. I would like to start a drug testing program because I want to make sure I hire employees who won’t come to work under the influence of drugs or alcohol. What do I need to know about employment drug testing?

Answer:

In California, an employer’s right to conduct drug testing is limited by the employee’s right to privacy, conferred in the state and federal constitutions. For employees in safety sensitive jobs, the law permits a broader range of drug testing based on the rationale that the public safety interest outweighs the employee’s right to privacy. However, testing procedures and results must be conducted in a manner that protects the employee’s right to privacy and medical confidentiality. Also, employers should have a Drug Free Workplace policy that describes the employer’s commitment to a drug free workplace, and explains the types of testing the employer uses. In all cases, the employee must consent to the testing, although the employer can condition employment, or continued employment, on consent and the satisfactory completion of the test.

There are generally five types of employment related drug testing.

1. Pre-employment testing
California law allows a private employer to require a suspicionless drug test as a condition of employment after a job offer is tendered but before the employee goes on the payroll. A recent case, however, limited a public employer’s right to conduct pre-employment drug testing on all applicants. The Federal Ninth Circuit Court of Appeals, which covers California, held that the policy followed by the City of Woodburn, Oregon, required all applicants for public employment to submit to drug testing, was unconstitutional. The Court held that a public entity that has no suspicion about an individual must demonstrate a special need for drug testing that outweighs the individual’s privacy rights. Special needs that might justify the need for testing include jobs where the employee is charged with protecting public safety, interacting with children, or safely using heavy machinery. Although this case applies only to public employers at present, future decisions may limit the use of pre-employment drug testing by private employers as well.

2. On-Duty Random Testing
Random drug testing programs are those in which an employer informs employees that they may have to submit to drug testing at any time while on duty during their employment. Random testing is permitted for employees who hold safety sensitive jobs. Safety sensitive jobs include those that are critical to public safety, the protection of life and property, or involve the operation of dangerous equipment.

Random testing is accomplished by submitting the name of every employee into the random selection pool. The random selections are made by an independent testing facility, without employer participation or influence.

3. Reasonable Suspicion Testing
The law allows “reasonable suspicion” drug and alcohol testing of existing employees who work in a safety sensitive position. Reasonable suspicion for requiring an employee to submit to drug and/or alcohol testing generally exists when the employee manifests physical or behavioral symptoms or reactions commonly attributed to the use of controlled substances or alcohol, or where other factors suggest a violation of the employer’s Drug Free Workplace policies. “Reasonable suspicion” has been defined by one court as something less than probable cause but more than mere suspicion. It is suspicion that requires further investigation and which has some factual foundation in the surrounding circumstances observed in light of the observer’s knowledge. Examples include alcohol on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms of alcohol or drug influence.

4. Post Accident Testing
Employers may conduct a drug and/or alcohol test on employees who occupy a safety sensitive job and who are involved in on-the-job accidents that may have involved human error and which cause a fatality, a serious injury, an injury requiring immediate treatment away from the scene, or an accident involving significant property damage. Post-accident drug or alcohol tests should be performed as soon as possible following the accident. Courts have generally upheld post-accident testing when an employer has reasonable suspicion that an employee involved in the accident was under the influence of drugs and/or alcohol, or if the accident was a serious one.

5. Return to Work and Follow-up Testing
Employees may, in some circumstances, be required to be tested for drugs to determine their fitness to return to duty. Such testing is done in the same manner as pre-employment testing.

Also, an employee returning from a substance abuse rehabilitation program, or who has violated the employer’s Drug Free Workplace Policy, may be required to submit to and successfully complete a return-to-duty drug and/or alcohol test, and follow up testing.

The type of testing program you may implement will depend on your business. If your employees are not in safety sensitive positions, you are limited to conducting pre-employment drug testing. If some or all of your employees occupy safety sensitive positions, your drug testing program may also include random, reasonable suspicion, post accident, and return to work testing.
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