On October 11, 2018, the federal Occupational Safety and Health Administration (OSHA) issued a memorandum relaxing the rules on post-accident drug testing and drug testing as part of a safety incentive program.  Formerly, OSHA rules permitted drug testing only where there was a “reasonable” possibility that drugs or alcohol contributed to the workplace accident or injury.  Now, OSHA will focus on whether employers consistently enforce drug testing policies as part of legitimately creating a culture of workplace safety, and not using such policies to penalize an employee for reporting work-related injury or illness. 

The federal OSHA memorandum also clarifies that “most instances of workplace drug testing are permissible.”  This testing includes random drug testing, drug testing under a state workers’ compensation law, and drug testing to evaluate the cause of a workplace incident.  In the latter case, the employer should test all employees whose conduct may have contributed to the incident, not just the employee(s) who reported injuries.

Although OSHA has relaxed its position on post-accident testing, California employers should not rely on federal OSHA’s views.  That is because California law imposes greater restrictions on workplace drug testing.

Applicant Drug Testing

Applicant testing remains generally lawful in California for private sector employers, although not necessarily for public sector employers. However, employers should have a formal policy regarding applicant testing and provide notice to applicants that offers are conditioned on passing a test for unlawful drugs. Employers also must be consistent regarding who is subject to testing and the substances for which testing will be performed.  Testing procedures should minimize privacy intrusions and should include confirmation testing and safeguards against false-positive results. Although California legalized recreational marijuana use last year, California employers (as of now) may test for marijuana metabolites and exclude applicants who have them in their systems.

Employee Drug Testing

Employees have stronger privacy rights vis a vis their employers than applicants. The California Constitution’s right to privacy generally protects employees from random, suspicionless drug tests, unless an employer can demonstrate a legitimate interest in maintaining a drug-free workplace that outweighs the employee’s privacy rights. For example, random drug testing is an unlawful intrusion into employees’ privacy, unless the employees involved occupy “safety-sensitive” positions; i.e., one that would result in serious danger to the public or employees if an accident occurred.

Employers, however, generally may conduct drug or alcohol testing on employees, based on “reasonable suspicion” of illegal drug use. “Reasonable” is an objective standard, and must be based on objective factors such as physical appearance, conduct or behavior, direct evidence of illegal drug use, and others. Training management to apply objective factors is an important component of a “reasonable suspicion” testing policy.

An employee’s accident at work, alone, is not necessarily sufficient “reasonable suspicion” of illegal drug use in California.  That is because accidents happen for a variety of reasons, such as carelessness, poor training, and defective equipment. Again, however, the accident, combined with objective facts indicating unlawful drug uses, may create sufficient justification to conduct the test.

The above guidelines may not apply in some local areas of California, or if an industry is subject to special federal or state laws and rules. For example, local jurisdictions, such as San Francisco, further restrict drug testing. Art. 33A of the Police Code bans suspicionless drug testing under any circumstances. The ordinance does permit testing based on “reasonable suspicion” that the employee is working while under the influence.

On the other hand, federal agencies such as the Department of Transportation or the Federal Aviation Administration impose drug testing mandates that will override this privacy right. Some state agencies also require drug testing of employees, and authorize private sector employers in certain industries to do so as well.  

The Right to Privacy

The California Constitution’s right to privacy is not absolute. It requires a balancing test among several factors, including the nature of the intrusion, the expectation of privacy, and the legitimate interests behind the intrusion.

To help reduce an employee’s expectation of privacy, employers should maintain a lawful, drug-free workplace policy that explains the basis for drug testing, the methods employed, and the consequences of a positive result.  Employers should specifically address marijuana use, as California residents may believe they are entitled to consume marijuana away from work, even if doing so will cause a positive drug test result.

The nature of the intrusion element addresses how testing is performed. For example, urine tests may be considered less intrusive than drawing blood. The testing conditions (such as a private area to collect samples) may matter as well.  The scope of the testing, the way results are reported, and to whom, also may affect the analysis.

The employer’s “legitimate interest” factor increases based on circumstances such as a government requirement to test, the danger of performing the job, client requirements, and other factors.  For this reason, employers have greater latitude to conduct testing when the job is “safety sensitive.”

Other Legal Risks

The federal Americans with Disabilities Act (“ADA”) and California Fair Employment and Housing Act (“FEHA”) do not prohibit drug testing. However, the ADA and the FEHA do prohibit discriminating against a drug addict or alcoholic, who is not currently using drugs or alcohol.  So, employers must be careful when making personnel decisions about employees who have past, but not current, drug use.  Some drug testing may uncover the metabolites of drugs that were ingested long before the test. Therefore, employers must consider whether a positive test result is based on recent or current drug use, versus use that occurred in the past.

Because of the strong privacy considerations in drug testing, and because employers must safeguard medical information from unjustified publication to third parties, employers must take all necessary steps to ensure drug testing records are kept private and only disclosed as required by law.  Like medical records, drug test results should be kept separate from a general “personnel file”

Despite the various restrictions, drug testing can be an important part of an employer’s workplace safety plan.  With proper planning and implementation, employers may mitigate the potential legal risks.

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