What laws govern substance abuse and alcohol abuse and the ability to conduct alcohol and drug testing? "In California, it's really surprising that there's not a specific statute – in either our labor code, or under the Fair Employment and Housing Act, or anywhere – that specifically provides the step-by-step: what can you do, what can't you do," Marc Jacuzzi explained in a CER webinar. Rather, what you can and cannot do is gathered from various state and federal laws and court cases that have provided guidance. That leaves us with a lot of gray areas in respect to alcohol and drug testing in California. (CER webinar titled "Drug and Alcohol Testing in California: Effective Strategies That Protect Your Company and Your Employees,")

Alcohol and Drug Testing in California: Some Guidance

Drug testing of private sector employees and applicants in California implicates the right of privacy set forth in the California Constitution. The courts have tried to balance the privacy rights of individual employees and applicants against the employer's legitimate safety concerns. Through a series of decisions addressing various types of drug testing, the California appellate courts have provided a framework for employers in this area. Here are some of the key decisions you should know about:

• Pre-employment alcohol and drug testing is allowed. In a case from 1989 (Wilkinson v. Times Mirror Corp), the California Court of Appeal permitted the testing of job applicants, finding that they have a lesser expectation of privacy than employees. In fact, in Pilkington Barnes Hind v. Superior Court from 1998, the Court of Appeal pointed out the importance of conditioning job offers on successfully passing a drug test and even upheld an employer's right to terminate an employee who took the "pre-employment" drug test a couple days after starting work (though Jacuzzi pointed out in the webinar – this route is not suggested). Ideally, you should make the job offer conditional upon passing the test, this should be spelled out very clearly, and the employee should not begin work until after passing the test.
• Random testing is not allowed. Random testing of employees not in a safety-sensitive position is unlawful in California. There were two important cases from the Court of Appeal that set this precedent, both from 1990: Luck v. Southern Pacific Transportation Co. , and Semore v. Pool.
• Random testing for safety-sensitive positions is an exception. While completely random testing is unlawful, random testing for safety-sensitive positions is allowed. In Smith v. Fresno Irrigation District in 1999 the Court of Appeal determined whether the position was safety-sensitive by considering the degree, severity and the immediacy of harm posed to the individual, co-workers and the public. While this case dealt with a public-sector employer, these factors may also be used by private employers to evaluate which of their employees may be considered as having safety-sensitive positions for which random testing is permitted in California.
• Alcohol and drug testing with reasonable suspicion is still a gray area. In Kraslawky v. Upper Deck Co. from 1997, the California Court of Appeal addressed – but did not completely answer – whether an employee may be tested on reasonable suspicion of drug use. In the case in question, the appellate court did not dispute the lawfulness of the reasonable suspicion testing where the employee had agreed (as a condition of employment) to suspicion-based testing. It is unclear, however, whether the court would have reached the same conclusion without the employee's voluntary agreement to reasonable suspicion drug testing.
  The key take-away for employers is to have a policy in place – one that employees sign-off on pre-employment, ideally – before implementing a reasonable suspicion testing policy. This lessens the privacy expectations if employees voluntarily agree to the policy in advance. Bear in mind, however, that the California Supreme Court has not directly addressed whether non-safety-sensitive employees may be tested on reasonable suspicion. They've only implied – but not directly stated – it would be permissible based on the Loder v. City of Glendale case from 1997, which was applicable for public-sector employees. That same case specifically noted that suspicion-less testing was not allowed for public-sector employees, based on the 4th Amendment to the US Constitution.
• Off-duty testing is not allowed. The Court of Appeal upheld an injunction prohibiting an employer from conducting off-duty drug testing (Edgerton v. State Personnel Board, 2000), unless necessary to comply with federal regulations and no less-intrusive options are available.

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Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgilaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.