Former Major League Baseball player Mark McGwire’s recent admission that he used steroids throughout his career came as no surprise in a profession plagued by similar problems. While McGwire ostensibly used the drugs to enhance his performance, employers generally fear a decrease in performance when their employees use illegal drugs.

Employers usually want to prevent negative effects on worker productivity and safety. Indeed, some employers are required to make sure employees are not working under the influence. One available tool is to test applicants and employees for drug use. However, California employers encounter tension between employees’ privacy and their duties or desire to maintain a drug-free workplace.

Laws That Regulate Drug Testing

State law primarily determines whether private employers can legally test employees for drugs. The California Constitution and cases interpreting it present the most serious restriction on applicant and employee drug testing. The Constitution protects individuals’ right to privacy. Unlike in most other states, these privacy protections apply not only to acts of the government, but to acts by private employers.

Drug testing also may implicate different statutes, including anti-disability discrimination laws, medical privacy statutes, and even local ordinances prohibiting certain testing, such as San Francisco’s.

The California Supreme Court applied the California Constitution’s privacy protections to drug testing in Hill v. National Collegiate Athletic Association. In Hill, the Court created a “balancing test” to determine whether the drug test at issue was legitimate. That test balanced the testing party’s interests against the individual’s reasonable expectations of privacy. Courts continue to apply this test when evaluating drug testing practices by employers in the private sector.

Anti-discrimination laws may apply when an employer tests employees lawfully using certain drugs and takes action when they test positive. For example, employees may be using prescribed drugs to ameliorate a bona fide disability. San Francisco’s ordinance regulates the types of testing and the circumstances under which it may be conducted.

On the other hand, some laws require either drug testing or programs to ensure a “drug-free workplace.” Applicants and employees for certain public-sector jobs, positions as drivers of larger vehicles, and others may be required to submit to drug testing.

Types of Drug Testing

The most common forms of testing include applicant drug testing (where employers test applicants before they even start working); testing based on “reasonable suspicion,” based on specific facts and circumstances an employee is using drugs; random testing (selecting employees for testing without suspicion); and post-accident testing (triggered when injuries occur or based on other criteria).

Pre-Employment Testing

With some restrictions, California courts have generally allowed employers to test applicants for drugs. In Loder v. City of Glendale, a case involving a public employer, the California Supreme Court upheld pre-employment drug testing under the Hill balancing test. The City of Glendale tested all applicants after offering them jobs. The Court found this pre-employment testing was justified under the California Constitution because of the significant problems posed for the city by employees who abused drugs and alcohol. The city had a legitimate and substantial interest in determining whether an applicant was currently engaged in such conduct before hiring. In Pilkington Barnes Hind v. Superior Court, the California Court of Appeal came to a similar conclusion when considering a pre-employment drug test by a private employer.

To avoid concerns about discrimination and the job-relatedness of a testing program, an employer should be consistent when testing applicants entering the same job classification. An employer should not selectively test only certain applicants in a job class.

Employers often conduct pre-hire drug testing after making an employment offer. Doing so also may avoid unlawful pre-hire inquiries when an employer seeks to clarify an employee’s lawful use of prescription drugs to treat a disability. Testing all applicants before narrowing the field can be prohibitively expensive as well. The courts have held that permitting the applicant to begin work does not convert the test from pre-hire to post-hire.

Finally, a recent federal case casts doubt on pre-employment tests that are not justified by specific, identified problems. In Lanier v. City of Woodburn, an applicant for a position at a public library challenged a pre-hire drug testing requirement. The Ninth Circuit Court of Appeals found that because the city did not demonstrate a special need to drug-screen for position at issue, the testing violated the Fourth Amendment of the U.S. Constitution, which requires individualized suspicion. While the Fourth Amendment only applies to government employers, California courts have relied on federal jurisprudence to interpret drug testing requirements for private employers. So, it is unclear what, if any, effect the Lanier case will have on pre-employment testing by private employers.

Reasonable Suspicion Testing

The courts have provided little guidance about what qualifies as a “reasonable suspicion” of an employee’s drug use. Employers should rely on objective criteria developed over time by medical professionals and regulators. To ensure suspicion is indeed reasonable, the employer should train management regarding the warning signs of drug use.

When an employer lacks a bona fide reasonable suspicion of drug use, employees’ privacy rights more likely will outweigh the employer’s business interest in conducting a test. For example, in Kraslawsky v. Upper Deck Company, the California Court of Appeal stated, “[i]f a drug test is not triggered by a reasonable belief the employee is intoxicated, the employee may have a stronger reason to expect to maintain his or her privacy interest and the employer may have less need to demand the test.”

Random Testing

“Random” testing is really just testing without adequate suspicion of drug use. As discussed above, without adequate justification for the test, an employee’s privacy rights likely will prevail. But in Smith v. Fresno Irrigation District, a California Court of Appeal upheld random drug testing for employees in “safety-sensitive” positions. The employee’s expectation of privacy was outweighed by the employer’s “legitimate and substantial” safety-related reasons for random testing.

Post-Accident Testing

While no California cases since Hill have addressed automatic post-injury/post-accident testing specifically, some courts decided prior to Hill evaluated post-accident testing under the Fourth Amendment. In Connelly v. Newman, for example, the U.S. District Court for the Northern District of California rejected post-accident testing by the United States Office of Personnel Management (OPM), but upheld reasonable suspicion testing. The court determined OPM’s interests supporting testing were weak because the testing plan required minimal property damage, did not have a causation requirement, and involved employees who did not pose a significant threat to public safety.

By contrast, in International Brotherhood of Teamsters v. Department of Transportation, the Ninth Circuit upheld an order by the Federal Highway Administration of the Department of Transportation that required different types of drug testing for commercial motor vehicle operators, including post-accident testing after a fatality, an injury demanding immediate medical treatment away from the scene of the accident, or involving at least $4,400 in damage.

Especially given the courts’ treatment of reasonable suspicion in post-Hill cases, it is risky to conduct post-accident testing following all accidents, or accidents involving little property damage or injury. An accident may contribute to a manager’s “reasonable suspicion,” of course, but there should be other indicia of drug use.

Employer Tips

Unless a specific law or ordinance prohibits or requires drug testing, employers must balance their needs against employees’ privacy rights. The absence of a “bright line” rule can create uncertainty. But employer can take steps to mitigate the risk of drug testing.

Unless or until the law changes, employers are generally free to conduct pre-employment, post-offer testing. As the Supreme Court recognized, such drug testing can contribute to fewer drug users in the workplace. Active drug users will be deterred from applying if the employer publicizes its testing program.

Employers also can help tip the “balance” of interests in their favor by reducing employees’ expectation of privacy. One effective method of doing so is to give applicants and employees adequate notice of the employer’s drug testing program. Notice may be given in a handbook or on a sign posted where applicants apply for work.

Employers can demonstrate a commitment to a drug-free workplace by implementing policies and practices affirming the employer’s disapproval of illegal drug use. When employees are found to be in possession of or using illegal drugs, a strong response can deter others from making similar mistakes.

While it is important to respect an employee’s privacy rights, employers also have the obligation to provide a safe working environment for all employees. Aside from drug testing, an employer may need to prevent an employee from performing his or her regular duties if the employer feels injury or harm could result.

Finally, it is important to apply anti-drug policies fairly and consistently. Employers should resist the temptation to selectively enforce reasonable suspicion-based testing programs. It also is important to train managers adequately regarding not only what constitutes adequate suspicion of drug use, but also the thorny procedures involved in conducting effective drug tests.

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