California Drug Testing Laws
California employers operate under some of the strictest rules in the nation when it comes to workplace drug testing. Unlike some states, where employers have broader allowances for testing, California law requires a careful balance between an employer’s interests and an employee’s constitutional right to privacy.
California Pre-Employment Testing Drug Testing Rules
Pre-employment drug screening is generally permissible if handled correctly. Courts recognize that applicants have a lower expectation of privacy because they are voluntarily seeking employment and understand they must share personal information during the hiring process. Employers may condition a job offer on passing a drug test, provided that:
Applicants receive advance notice of the testing requirement.
The test is conducted in a reasonable, non-intrusive manner.
The process includes safeguards to protect confidentiality of results.
Employers are within their rights to withdraw an offer of employment if an applicant fails a properly administered pre-employment test, and employers should ensure that the language of the offer is contingent upon the successful completion of such test.
Testing of Current Employees
By contrast, testing current employees is subject to far stricter scrutiny. Because employees already enjoy established privacy rights in the workplace, California courts require employers to demonstrate compelling reasons for testing. Acceptable justifications may include:
A reasonable suspicion that an employee is under the influence on the job.
A significant reduction in the employee’s expectation of privacy due to the nature of the role (for example, safety-sensitive positions).
Courts weigh factors such as the reliability of the test, how it is administered, and the degree of intrusion on the employee’s privacy.
Random Drug Testing in California
California courts have consistently disfavored random, suspicionless drug testing of employees is generally unlawful because it violates the state constitution’s right to privacy. The California Supreme Court has not directly banned random testing across the board, but case law strongly weighs against it. Testing is typically allowed only when there is a strong safety or security justification (such as in certain transportation or hazardous positions). Most private-sector employers are advised against adopting random drug testing.
There are certain exceptions to this general rule, such as when employees work in a dangerous position where injury is likely. Additionally, employers who are legally required to randomly drug test certain employees (e.g. commercial motor carriers and drivers) should continue to conduct such testing.
Marijuana Use
As of 2024, marijuana use is now protected in California, and employers cannot discriminate on off-duty cannabis use or the presence of non-psychoactive metabolites. As such, employers should avoid testing for cannabis. More details about California’s protection of marijuana are found here.
Drug Testing Policies are Recommended
Even with limits on testing, employers should adopt a clear drug and alcohol policy. A well-drafted policy helps:
Establish expectations for a safe and productive workplace.
Clarify when testing may be permitted (for example, pre-employment or when there is reasonable suspicion of impairment).
Outline consequences for being under the influence on the job.
Ensure that employees are properly notified of any required testing.
Ensure compliance with both state privacy rights and federal or industry-specific testing requirements.
Without a written policy, employers risk inconsistent enforcement and greater exposure if litigation arises.
Key Takeaways for Employers
Random drug testing is generally prohibited in California.
Pre-employment testing is allowed, but must be applied fairly and with notice.
Reasonable suspicion testing of current employees is permitted, but should be carefully documented.
Off-duty marijuana use is protected, and employers cannot rely on metabolite-based tests.
A clear policy is the best defense against compliance risks.
California’s drug testing rules are complex and evolving. Employers should regularly review their workplace policies to ensure compliance with the latest case law and statutory protections.
If you would like assistance drafting or updating your drug and alcohol policy—or if you have questions about how these rules affect your business—contact Chapman Employment Law today.
