Drug use can be a concern for employers across California who want to ensure their employees are not impaired on the job. The safety of the workforce and the public provide ample incentive for employers to take steps to have a drug-free workplace. To achieve that objective, drug testing employees can be a useful tool.
Starting Point: Proper Policy
Generally, drug testing of employees in California is legal. However, constraints exist as to when and how drug testing can take place. Understanding those rights and limitations is very important. The process of developing and implementing a drug testing policy will help educate you on the legalities of drug testing. Failing to clearly define your policies in writing and provide them to your employees can be a costly mistake.
It can also be crucial to review your drug testing practices and requirements with an attorney or consultant to ensure they are appropriate and enforceable. A thorough examination and regular review of your drug policies can help you create a safe workplace without violating your employees’ rights.
Conducting Tests at the Right Time
While it may be within your rights to require employees to submit to a drug test, doing so at the wrong time can lead to legal disputes. Some of the opportunities to have an employee submit to a drug test are as follows:
- Pre-employment
- Reasonable suspicion
- Post-accident
- Post-incident
- Random
Your policy will define each of the opportunities for the benefit of your company and your employees. For example, if pre-employment drug testing is combined with a pre-employment alcohol test, the test becomes a medical exam of sorts and can only be conducted if the applicant has received a conditional offer of employment. As for reasonable suspicion testing, supervisors should be trained on how to recognize the indicia of someone who is under the influence of drugs. Random testing can normally only be conducted on employees who are in safety sensitive positions. Realizing what each type of testing involves and establishing protocols for ensuring that testing is done correctly helps keep a safe workplace and you out of trouble for improperly executing drug testing.
Conducting Tests the Right Way
The policy you develop will also address how testing will be conducted. Typically, you will establish a relationship with a laboratory or other drug testing site where employees will be sent for testing. You will need to establish which drugs will be tested for, define a positive test by establishing cut-off levels, determine how the sample will be obtained such that privacy rights are considered, establish how long an individual will have to produce the sample, decide whether the testing will be conducted on urine, blood, hair, etc. Consideration must be given to how the individual will get to the testing site and back. Many other details will be evaluated as you develop your policy and practices.
Drug testing can serve as a deterrent and a protective shield for an employer. Doing things correctly is essential.
