It is common in today’s job market for a candidate to receive an employment offer conditioned on successful completion of a drug test, to determine the fitness of the job applicant for the particular job. As employers it is important to hire the best employees that will display behaviors that are in line with the company’s values; and drug testing is an affordable, legal, and well trusted measure of an applicant’s behavior. However, employers who do business in California must understand that this right to drug test applicants is not unchecked and must be applied in a non-discriminatory manner and in such a way so as not to violate the individual privacy of the individuals tested.

No statute, or case law outright forbids drug testing in the workplace or limits an employer’s right to condition offers of employment on the results of such drug tests or medial examinations meant to determine an employee’s fitness for the job in question. In fact, the Fair Employment and Housing Act (FEHA), and Americans with Disabilities Act (ADA) implicitly permit drug testing as a means of evaluating job fitness. In Wilkinson v. Times Mirror Corp (1989) 215 Cal.App.3d 1034, the Court held that pre-employment drug testing did not violate prospective employees’ state constitutional privacy rights and that drug testing results are directly related to job applicants fitness, and as such are not an “unlawful business practice” under California Business and Professions Code § 17200.

However not all pre-employment drug tests are considered lawful. In Wilkinson, it was a private employer who asked all job applicants to submit to a pre-employment drug test, after providing the applicants adequate notice, and the samples were collected during a regular pre-employment physical examination conducted by medical personnel under conditions designed to minimize the intrusiveness of the procedure and restrict access to the test results. Without these employee protections, an employer may be liable for an invasion of privacy. Employers who require applicants to submit to drug tests before receiving an offer, employers who randomly drug test employees/applicants, test without any notice, fail to implement measures to protect the individual’s privacy, or apply the drug testing policies which in any manner targets applicants with any protected characteristic may be subjected to liability for discriminatory practices.

The ADA prohibits the administration of drug tests that identify prescription drugs taken for a disability before an offer of employment is made. It is settled that these same tests would be allowed if included on a conditional offer. Drug tests conducted before making a conditional offer must be designed to identify only illegal drugs. If the test identifies what is typically an illegal drug, but the employee can provide proof that the drug was prescribed by a professional medical examiner. Notably, if an adverse action is taken against an individual who tests positive (at any time) because of medication taken under medical supervision, the individual has a right to contest the action. It is important to note that the California Supreme Court has decided that despite medical marijuana and recreational marijuana being legal, an employer is under no obligation under the compassionate use act, or any other law to make accommodations for employees who use marijuana and can still drug test and terminate employees for their marijuana use.

Employers may avoid pre-employment violations by deferring any drug tests until a conditional offer of employment is made. This allows employers to reduce the number of individuals who will be tested, saving costs. If an applicant were to test positive, the employer can rescind the offer without fear of violating the ADA. Employers must take into consideration how their testing policy may implicate the applicants’ right to privacy, discrimination, public policies, employment contracts and collective bargaining agreements. For employers who wish to use pre-employment drug testing as a means for selecting the best work force possible, it is important to consult an employment and labor attorney who understands these laws and can implement a policy in your company that is compliant with the law.