California Drug Testing Laws 2024

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California Drug Testing Laws 2024

The California Fair Employment and Housing Act (FEHA) provides reasonable protection to disabled employees in the state. FEHA allows an employee to file a disability discrimination claim if an employer terminates or refuses to hire an employee for taking drugs legally prescribed by a doctor to manage an approved condition.

On September 18, 2022, California amended the FEHA via Assembly Bill 2188, making marijuana users a protected class in the state. From January 1, 2024, employers can no longer discriminate against an individual per hiring, termination, or another employment-related decision if the discrimination is based on any of the following:

• An individual's use of marijuana off the job and away from workplace environments. This does not restrict an employer from discriminating in hiring or any employment condition or otherwise penalize an individual based on scientifically valid pre-employment drug test conducted via methods that do not screen for non-psychoactive cannabis metabolites
• An employer-requested drug test that has found the employee to have non-psychoactive cannabis metabolites in their hair, urine, blood, or other bodily fluids

There are a few exceptions to the employment discrimination prohibitions under Assembly Bill 2188. These include:

• Employees working in the building and construction industry
• Applicants or employees hired for positions mandating a federal background investigation or security clearance per Department of Defense regulations or equivalent regulations for other agencies
• Applicants and employees are required to be tested pursuant to state or federal laws and regulations or as a prerequisite for an employer receiving federal funding, federal licensing benefits, or entering into a federal contract

Note that California allows its municipalities to enact local ordinances pertaining to drug testing regulations in their jurisdictions. Hence, you may need to research local drug testing laws in the municipality where you work or intend to get a job.

What Kinds of Drug Tests Can Employers Conduct in California?

California's AB 2188 allows employers to request drug test screenings using blood, urine, hair, and other bodily fluids. The 5-panel urine drug test is a common drug test used by employers in California. The 5-panel drug test screens five major drugs:

• Amphetamines
• Methamphetamine
• Marijuana
• Cocaine
• Opiates
• Phencyclidine

However, in some cases, a 10-panel drug test may be required. In addition to the drugs listed in the 5-panel drug test, a 10-panel drug test also screens for metabolites linked with:

• Propoxyphene
• Methaqualone
• Methadone
• Benzodiazepines
• Barbiturates

The 3 main forms of drug tests allowed in California are:

• Pre-employment Drug Testing: An employer may require a job applicant who has been offered employment to submit to a drug test before they are officially hired and placed on the company payroll
• Random Drug Testing: Random drug tests are generally only allowed under specific circumstances. Usually, an employee may only be randomly tested if the individual works in a position that affects public safety
• Reasonable Suspicion Drug Testing: Reasonable suspicion drug testing may be required when there is a reasonable belief that an employee may be under the influence of drugs while at work. This suspicion is typically based on specific, observable behaviors, appearance, or performance issues that lead the employer to believe the employee may be impaired

Can Employers Do Random Drug Testing in California?

Except in narrowly defined situations, random drug testing is illegal in California. Typically, employees are required to be notified ahead of drug screenings. However, some jobs, such as those involving public safety, may require random drug tests. In such cases, employers are required to ensure the selection process for employees who get tested is genuinely random and not discriminatory. Note that employees subjected to random drug tests may contest the action if the testing process violates employee's privacy or is humiliating.

What Happens if You Fail a Drug Test in California for a Job?

Typically, failing a pre-employment drug test can result in disqualification for a position, especially if the job offer is contingent on passing such a test. For employees, the repercussions of a failed drug test can vary, ranging from termination to the requirement to undergo drug rehabilitation, depending on company policies and the nature of the job.

In certain situations, individuals may challenge drug testing outcomes, asserting a violation of their constitutional right to privacy. Legal issues may also arise, particularly concerning the use of prescribed medications. Many Californians are protected under the Americans with Disabilities Act as they rely on prescription drugs for medical or mental health conditions. Therefore, substances like opiates or benzodiazepines may appear in drug tests for such individuals. If termination or non-hiring results from a failed drug test due to legally prescribed medication for a disability, individuals may pursue claims for disability discrimination.

Furthermore, if drug testing selectively targets employees or job applicants based on protected characteristics like race, age, or gender, it may lead to an employment discrimination claim. Successful resolution of such claims can entail remedies such as back pay, financial damages, and job reinstatement.

Can I Be Fired for Refusing a Drug Test in California?

Yes, you can be fired for refusing a drug test under certain circumstances. While employees generally have the right to privacy, employers also have the right to maintain a safe and drug-free workplace.

Employers can generally require drug tests as part of the pre-employment process. Refusing a pre-employment drug test may result in your job offer being rescinded. Random drug testing is only allowed in certain safety-sensitive industries, such as law enforcement, transportation, and construction. If you work in one of these industries and refuse a random drug test, you can be fired. Moreover, if your employer has a reasonable suspicion that you are under the influence of drugs at work, they can require you to take a drug test. In this case, refusal could also be grounds for termination.

However, in most jobs in California, while employers are allowed to require pre-employment drug screening, drug tests are often illegal once work begins. Therefore, you can sue for wrongful termination if you are fired for refusing to undergo a drug test after assuming duty. If you believe you have been wrongfully terminated, you may seek legal counsel by consulting with an employment attorney to explore the appropriate course of action based on the specific circumstances of your case.

Can You Get Fired for Failing a Drug Test with a Medical Card in California?

California drug testing law does not protect medical marijuana cardholders from workplace drug testing. Employees are permitted to keep workplaces free of drug use regardless of the purposes for which employees may consume marijuana. Therefore, if you fail a drug test for marijuana, a California medical marijuana card will not protect you from being penalized, as stated under the workplace drug policies.

Since California medical marijuana patient information is protected under the Health Insurance Portability and Accountability Act (HIPAA), employers do not have access to the information of prospective employees' information and cannot discriminate in hiring them. However, if a medical marijuana cardholder fails a pre-employment test by testing positive for drug use, an employer can refuse to hire the cardholder.

Can Employers Conduct Drug Tests on Applicants in California?

California does not allow employers to request job applicants to submit for drug testing unless the potential employee has accepted a conditional employment offer. In such a case, the employer may ask prospective employees to agree to a pre-employment drug test.

Is Pre-Employment Drug Testing Allowed in California?

California pre-employment drug testing laws permit employers in the state to require prospective employees to submit to a “suspicionless” drug test after a job has been offered but prior to resuming work. A “suspicionless” drug test requires that all applicants for a particular position be tested without singling out certain applicants based on their disabilities or races. However, pre-employment drug tests must maintain applicants' rights to privacy as outlined under Article I, Section I of the California Constitution.

Per AB 2188, from January 1, 2024, employers can maintain hiring standards based on scientifically valid pre-employment drug tests that do not detect non-psychoactive cannabis metabolites. Non-psychoactive metabolites are chemical byproducts of cannabis use that may remain in the body for up to 30 days or more in some individuals.

Does California Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Under California employment laws, employers are not usually allowed to randomly or routinely drug test employees. Usually, employers must give their employees notice before performing a drug test. Employers who have a reasonable suspicion that an employee is using illegal substances may be on safe, legal grounds in testing such an employee provided the suspicion is based on objective facts, such as observable behaviors in the employee like unsteady gait or slurred speech or after the occurrence of a workplace injury or accident.

Random drug testing is generally not allowed, although California courts have upheld it for safety-sensitive job positions, such as when an employee works in a job where their actions could potentially place the general public at risk, such as a public safety employee or truck driver. Hence, government employers may have different regulations and standards for drug testing, as they are required to balance employees' privacy rights with public safety concerns.

Note that some California jurisdictions may have specific ordinances related to drug testing. For instance, San Francisco enacted a drug testing ordinance under Article 33A of its Municipal Code.

Can Employers Choose to Create Drug-Free Workplace Policies?

Although California's new drug testing law prohibits discrimination against employees for marijuana use outside of workplaces, nothing in the law restricts employers from enforcing drug-free workplace policies.

AB 2188 ensures that employers have the right to test employees when there are safety concerns and in cases where intoxication is suspected. Also, employees can be fired for intoxication on the job. Furthermore, California employers have the right to maintain a drug-free workplace policy per Section 11362.45 of the California HSC (Health and Safety Code).

Employees Exempted From California Workplace Drug Testing Laws

California AB 2188, which goes into effect on January 1, 2024, exempts certain applicants and employees from the bill's provisions. Such employees include those in the building and construction trades and positions requiring a federal background investigation or clearance.

Federal employees are required to adhere to the drug testing policies enforced by their federal employers. Commercial transport workers are also subject to federal drug testing regulations as commercial driver licenses are issued by the United States Department of Transportation. The DOT's regulations and policies supersede California laws for Californians who have been issued CDLs.

Law enforcement agencies in California may also have more stringent drug test policies as their job deals with public safety. Law enforcement officers may face random resting, which employees in most other employment areas are not usually subjected to.

What are the Requirements for Drug Testing Labs in California?

Pursuant to Section 599.963 of the California Code of Regulations, drug tests must be performed by commercial laboratories certified by SAMHSA. The Substance Abuse and Mental Health Services Administration (SAMHSA) is a branch of the federal Department of Health and Human Services. Employers in California, when conducting workplace drug testing, often use SAMHSA-certified laboratories to comply with regulatory requirements and to maintain the integrity of the testing process.