The courts balance employee privacy rights against issueslike safety and public interest when looking at whether or not private employers can do drug testing. Essentially, they look at the employer’s reason for testing.
Under California law, the relevant factors include how intrusive the test is, and how employers determine who is tested and who is not; the customs and practices surrounding the activities of employment; and how well confidentiality is protected.
Employers may require some employees to pass a drug test to get a job, but they can’t single out certain groups for testing. And, even if you hold a recommendation for medical marijuana, the California Supreme Court has held that if you test positive for it, you can be fired.
Government employees and transportation workers are generally subject to different rules. If there is a special need involved, such the protection of a government interest, the test is usually allowed. That can involve railway workers, people involved with customs, an airline or a prison,and other employees dealing with sensitive information.
A drug test of someone who doesn’t work for the government is usually allowed with a reasonable suspicion of drug use, provided the proper safeguards are implemented. That could mean someone has alleged a direct observation of drug use; observation of a person who looks like they’re on drugs; abnormal or erratic behavior; conviction of a drug-related charge or information provided by believable sources or independently verified.
Most court cases about drug testing allege an unreasonable search or privacy invasion. Employees may also assert claims for intentional infliction of emotional distress, discrimination, defamation or violations of the Americans with Disabilities Act, under certain circumstances. Those who have had a drug dependency problem, but are in recovery, may have more protections. A defamation case can result if the employer had reason to know the test might not be accurate, or if they publicize that the employee has had a positive test.
Each case involving drug testing must be evaluated on the individual facts involved.
For more information or for a free case evaluation call 1-877-219-8481