Drug testing employees in California may constitute a breach of the right to privacy as stipulated in the state Constitution. So, while the Federal law does not expressly advocate or prohibit drug tests, save for certain safety-sensitive professions, the state has specific laws that protect the employees from certain intrusive tests. Interestingly, the protection covers all employees both in private sector and in the government.
It is, nonetheless, important to note that drug testing is not entirely illegal; California courts, while determining such cases consider the concerns of both parties. Below is a detailed description of the various laws on Drug Testing in California.
Drug Tests on Job Applicants
The state law permits employers to conduct drug tests on job applicants with the view of hiring those who pass the test. However, such an employee is under obligation to test all candidates for a particular employment position as opposed to identifying only a few because of their protected characteristic.
So, testing an applicant merely because of their disability is illegal. Surprisingly, in as much as the state accords residents the right to use marijuana for medical purposes, an employer has the right to decline to employ an applicant who tests positive for the same, even when the person has the doctor’s written authorization.
Generally, employers have the right to conduct reasonable suspicion drug testing as long as the cause is based on understandable objective facts. He or she will nonetheless be in violation of the law if the test is random unless the position is safety-sensitive.
The fact the statues do not lay down certain drug testing procedures implies provided employers put in place measures to ensure worker’s privacy expectations are catered for they stand a better chance of prevailing should a lawsuit come up. So, an employer is best advised not to seek legal redress in situations where their bosses provide a written policy that details the time drug testing will be conducted.
Possible Dangers Drug Testing to an Employer
Other possible legal claims include:
Discrimination against a disability – disqualifying a job applicant who tests positive for drugs prescribed for a disability constitutes disability discrimination. There are drugs that are illegal for normal persons but prescribed for persons with disability and an employer may mistakenly use the test as a basis for turning down a prospective employee leading to serious legal issues. Statutes such as Americans with Disability Act exist to champion for the right of such individuals.
Privacy violation – the procedure for conducting a drug test may in itself constitute a violation of a worker’s privacy. For instance, asking employees to provide certain samples in the presence of members of the opposite sex, may constitute invasion of privacy
Discrimination claim – an employer who conducts drug tests on a specific group of employees, for examples from one race, age group or gender only from the entire workforce, risks facing a discrimination claim.
Defamation – an employer who hurriedly publicizes positive test to a particular drug test when the employee suspects the tests might be inaccurate could face a defamation claim.