Employment Offers Conditioned on Drug Tests

              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.  However, employers do not have an unfettered right to drug test applicants and any requirements to drug test must be applied in a non-discriminatory manner and not to violate the individual privacy of the potential employees tested. The attorneys at Miller Wilmers APC are well versed in drug tests within the employment context and can shed light on what is, and is not legal for your employer to subject you to. 

 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 the Court in Wilkinson, authorized 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. When Employers 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, the employer 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, the employee cannot be turned down solely for taking that medicine. 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.

             Employees should be aware that their employer's testing policy may implicate their right to privacy, a discrimination-free workplace, public policies, employment contracts and collective bargaining agreements. If you feel you have been unlawfully forced to submit to a drug test, or a decision has been made against your employment based on the results of a drug test, contact our office for a FREE consultation so we can discuss the next steps to protect your employment.