Drug Testing in California

Pre-Employment Drug Testing

California’s Employment Development Department explains that a private employer may condition an offer of employment on the results of a medical examination that includes drug or alcohol testing, provided applicants for similar positions are treated consistently and the testing otherwise complies with applicable law.

Cannabis requires additional analysis after January 1, 2024. Even when an employer may require applicant drug screening, Government Code §12954 restricts employment decisions based on nonpsychoactive cannabis metabolites for most covered applicants.

Official sources: California EDD — Suitable Work / Preemployment Physicals and California Civil Rights Department — Cannabis Use Employment FAQ

Current-Employee Testing and Privacy

Drug testing can implicate privacy interests under the California Constitution. California courts have treated applicant testing and current-employee testing differently, and current-employee suspicionless testing can require a stronger justification depending on the employer, job duties, safety concerns, and testing method.

Public employers also face Fourth Amendment restrictions. Private employers should evaluate reasonable expectations of privacy and the strength of the business or safety interest supporting the test before adopting random or suspicionless current-employee testing.

Case-law reference: California Supreme Court — Loder v. City of Glendale

Drug and Alcohol Rehabilitation

California Labor Code §1025 requires every private employer regularly employing 25 or more employees to reasonably accommodate an employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, unless doing so would impose an undue hardship.

California law also requires employers to make reasonable efforts to safeguard an employee’s privacy regarding participation in a qualifying rehabilitation program.

Official source: California Department of Industrial Relations — Personal Leave / Drug and Alcohol Rehabilitation

Drug-Test Information and Medical Privacy

Drug-testing information can constitute sensitive medical information. Employers should limit access to testing results, use the information only for lawful employment purposes, and comply with applicable confidentiality and medical-information requirements.

California courts have recognized that urinalysis can reveal private medical and behavioral information beyond the specific substance an employer intended to test for, which is one reason careful policy design and limited disclosure are important.

Off-Duty Cannabis Use Is Protected for Most Covered Workers

Government Code §12954 generally makes it unlawful for a covered employer to discriminate in hiring, termination, or another term or condition of employment because a person used cannabis off the job and away from the workplace.

The same section generally prohibits adverse employment action based on an employer-required test that shows only nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

Official sources: California Legislature — AB 2188 and California Civil Rights Department — Cannabis Employment FAQ

Employers May Still Require Drug Screening

The California Civil Rights Department states that employers may still require applicants to take a drug screening test. The critical issue is what the test measures and what employment decision is made from it.

A scientifically valid test that identifies psychoactive THC, or screening for other substances when permitted by state or federal law, can be treated differently from a test that only detects nonpsychoactive cannabis metabolites.

Official source: California Civil Rights Department — Discrimination in Employment: Use of Cannabis

Employers Generally Cannot Ask About Prior Cannabis Use

Senate Bill 700 amended Government Code §12954 to make it generally unlawful for covered employers to request information from a job applicant about prior cannabis use.

Information about prior cannabis use obtained from criminal history is subject to separate rules, including California’s Fair Chance Act and other state or federal law.

Official source: California Legislature — SB 700

Important Exceptions

• Government Code §12954 does not protect workplace possession, use, or impairment.
• The cannabis metabolite protections do not apply to employees in the building and construction trades.
• They do not apply to specified positions requiring a federal background investigation or security clearance.
• They do not override state or federal controlled-substance testing requirements, including testing tied to federal funding, licensing, or contracts.
• Employers retain rights and obligations to maintain drug- and alcohol-free workplaces.

DOT Rules Are Separate from Non-DOT Testing

A personal or employer non-DOT drug test should not be substituted for a test that is required under DOT regulations. DOT programs have specific requirements for test reasons, forms, collection procedures, laboratories, Medical Review Officers, refusals, records, and return-to-duty processes.

Federal source: U.S. Department of Transportation — 49 CFR Part 40

Examples of DOT-Regulated Industries

• Commercial motor carriers regulated by FMCSA.
• Aviation employers regulated by FAA.
• Railroad employers regulated by FRA.
• Public transit employers regulated by FTA.
• Pipeline operators regulated by PHMSA.
• Other covered transportation operations under federal rules.