Among other things, the trend over recent years toward the legalization of marijuana for medicinal and recreational purposes has sparked a new conversation about how employers should manage the complicated and sometimes hazy legal issues regarding their workers' drug use.
What often appear to be inconsistencies and contradictions between federal and state drug testing policies can make things difficult for private employers. However, some clarifications can make things easier as employers work to create a safer working environment.
The California right to privacy
Unlike most other states, California has an individual's right to privacy included in the state constitution. As a baseline, all employees and potential employees have a legal right to keep their own personal lives private from their employers.
That being said, there are certainly situations in which employers can conduct drug tests, but California law allows for individuals to use marijuana if they have a valid, doctor-written prescription.
The Compassionate Use Act
Under California Proposition 215, also known as the Compassionate Use Act of 1996,
· People have the right to obtain and use marijuana for medical purposes
· Patients are protected from criminal prosecution or sanction for medical marijuana use
· Physicians are protected from prosecution
However, it is important to know that employers can still refuse to hire an individual if that individual tests positively for marijuana. But, this does not mean that employers can conduct drug tests any way they want.
Conducting drug tests
California law does not have strict guidelines determining how tests can or should be conducted, but tests are less likely to be challenged legally if they are done at the same time for every employee, if a particular employee has given the employer solid reason to believe a drug test is necessary or if the company has a written drug testing policy specifying drug testing information.
With all of this being said, drug tests and the actions of employers because of the results of drug tests can often be challenged. The most common legal challenge is based on the notion that the test or the way in which it was carried out was in some way discriminatory.
These types of issues can become very complex, very quickly. As such, if you find yourself in a situation wherein you have questions regarding the conduct of drug tests, it is recommended that you speak with a legal professional who specialized in these areas.