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Random Drug Tests: What Are My Rights?

Posted in Criminal Defense,Drug FAQ'S on December 18, 2018

To protect company safety, health, and operations, many employers require their employees and applicants submit to random drug tests. However, these tests are subject to many legal regulations regarding discrimination, fair notice, and accuracy. Before submitting to a drug test, it is crucial that you know your rights and can identify if a test violates them.

Your Rights as an Applicant

Many states allow employers to administer drug tests to candidates for open positions. However, these employers must follow state laws regarding proper notice and procedures that prevent discrimination and inaccurate sample collection. Under California law, employers may require candidates to pass a drug test to qualify for a position. Employers must test all employees equally and cannot target a certain applicant based on race, disability, or any other protected characteristic.

In California, both recreational and medical marijuana are legal. However, employers still maintain the right to reject applicants who fail drug tests due to recreational marijuana use. Even more surprising, employers can refuse to hire an applicant who uses marijuana for medical purposes, even if the person has a prescription. Since recreational marijuana is still a new law in California, these laws surrounding drug tests may change.

Your Rights as an Employee

Testing employees for drugs comes with a new set of legal requirements, as opposed to testing applicants. The laws surrounding these tests vary from state to state; some states forbid blanket drug testing of all employees and forbid random drug tests altogether. Many requirements state that employers must have a reasonable suspicion that an employee is using drugs and that this drug use is affecting their work performance.

Under California law, the state recognizes that employees have a greater stake in the drug testing process due to their history with the company. In addition, employers typically have less of a need to test current employees than they do applicants. Employers must have a reasonable suspicion to test the employee based on objective facts. Random testing is legal in California only for very safety-sensitive positions, such as government employees.

Defining Reasonable Suspicion

When an employer decides to test an employee for drugs in California, it must have reasonable suspicion to do so. The employer must base this reasonable suspicion on objective facts and logic, rather than assumptions and stereotypes.

  • Reasonable suspicion includes witnessing direct drug use or its physical symptoms in the employee.
  • Reasonable suspicion includes information that the employee’s drug use caused an accident at work.
  • Reasonable suspicion includes an independently corroborated report of drug use by the employee.
  • Reasonable suspicion includes abnormal or erratic behavior at work accompanied by a deterioration in job performance.
  • Reasonable suspicion includes drug test tampering evidence.
  • Reasonable suspicion includes evidence of possession, sale, or use of drugs while on the job.

Drug Testing Legal Claims

Despite the rules in place to protect employees against discrimination, legal claims can arise from unfair drug testing practices. Employees can file lawsuits against their employers for taking certain actions.

  • Singling out an employee or group of employees for drug testing based on race, age, or gender is forbidden.
  • Firing an employee with a disability protected by the Americans with Disabilities Act for failing a drug test if their medication caused them to fail the test is forbidden. Many medications prescribed for disabilities, such as opiates, can show up on drug tests. The exception to this rule is medical marijuana – employers can still fire an employee for marijuana use in California.
  • Publicizing that an employee tested positive on a drug test is forbidden. Not only is this an invasion of privacy, it also can be grounds for a defamation lawsuit.
  • Forcing employees to conduct a drug test in a manner that invades their privacy is forbidden. For example, if an employer requires employees to undress in front of each other or provide a urine sample in public, this would be an extreme invasion of privacy.

Before submitting to a drug test, make sure to review your legal rights and any employment contracts that may state the company’s drug test policy. If you believe your employer violated your rights during a drug test, seek legal counsel immediately.