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Summary of differences between federal and state regulations
Testing restrictions
The privacy protections in California's Constitution and case law impact drug testing. In addition, marijuana testing is restricted.
The need to conduct a drug test in California should be balanced with an individual's right to privacy. Pre-employment and reasonable suspicion drug tests are generally allowed. Random tests are only allowed if an employee is in a safety-sensitive position. There is no definition of safety-sensitive. Considerations include whether the employee is in a position affecting public safety or security, and the degree, severity, and immediacy of harm posed to the employee, other employees, and the public if the employee were to be impaired.
If the employee’s inability to perform his or her job would have an immediate disastrous consequence upon the security or safety of the public, coworkers, or the employee, random testing would likely be permissible. An employee working as a firefighter, police officer, or security guard is generally considered to be in a safety sensitive position. An employee who works with chemicals or heavy machinery could also be considered to be in a job that is safety sensitive. In Smith v. Fresno Irrigation District, a California court found that a construction-maintenance worker position was safety sensitive because the worker operated power tools and heavy equipment near coworkers and also had to crawl through a half-mile pipe to make repairs. Conditions in the pipe presented a high potential for injury, especially if a drug-impaired employee would become disoriented.
As of January 1, 2024, employers may not discriminate against employees based on off-duty use of marijuana. Employers may not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalize a person, based on:
- Use of cannabis off the job and away from the workplace.
- A drug test that has found the person to have nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.
There are some exceptions. The law does not apply to employees in the building and construction trades or applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense, or equivalent regulations from other agencies.
The law does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances. This includes laws and regulations requiring applicants or employees to be tested, or relating to the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits or entering into a federal contract.
An employer may use a preemployment drug test conducted through methods that do not screen for nonpsychoactive cannabis metabolites. However, the law does not define “nonpsychoactive cannabis metabolites.” It refers to “multiple types of tests” that do not rely on the presence of nonpsychoactive cannabis metabolites,” but does not specify testing methods.
The law notes that impairment tests, which measure an individual employee against their own baseline performance, and tests that identify only the presence of tetrahydrocannabinol (THC) in an individual’s bodily fluids (rather than THC metabolites) do not rely on the presence of nonpsychoactive cannabis metabolites. These types of tests are not yet readily available, however.
In addition, the law notes that the intent of a drug test is to identify employees who may be impaired. “While there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job,” it states. After a person consumes or uses cannabis, the drug is metabolized. The THC in the cannabis (the chemical in cannabis which causes the high feeling) is stored in the body as a cannabis metabolite. The presence of this metabolite in the body indicates that cannabis has been used sometime in the past few weeks, but does not indicate that an individual is impaired by cannabis.
Alcohol and drug rehabilitation
Employers with 25 or more employees must accommodate employees who wish to participate in a substance abuse treatment program, provided the accommodation does not place an undue hardship on the employer. Employees are not entitled to time off with pay for these purposes although the employee may use accrued sick time. Employers must make a reasonable effort to safeguard employees' privacy.
Van and small bus drivers
Under the Public Utilities Code, drivers transporting 15 or fewer passengers are subject to pre-employment, random, and post-accident tests. Drivers shall test negative for each of the controlled substances specified in Part 40 of Title 49 of the Code of Federal Regulations. This includes marijuana.
Employee education and supervisor training is also required under the regulations. Details are outlined in the Public Utilities Code, Sections 1032.1 and 5374(a)(1)(I) and (b).
Unemployment compensation
An individual may be disqualified from receiving unemployment compensation benefits if the individual is discharged for chronic absenteeism due to reporting to work while intoxicated, using intoxicants on the job, or for gross neglect of duty while intoxicated when any of these incidents was caused by an irresistible compulsion to use or consume intoxicants.
Workers’ compensation
Employers are not liable for compensation if an employee's injury is caused by intoxication by alcohol, or the unlawful use of a controlled substance.
Drug-Free Workplace Act
The California Drug-Free Workplace Act of 1990 requires all state contractors and grantees to implement a drug-free workplace policy and establish an employee drug awareness education program. It is similar to the federal law.
San Francisco City Ordinance
A San Francisco city ordinance prohibits random drug testing but allows testing for reasonable suspicion if the employee is in a position to harm someone due to being impaired.
State
Contacts
California Department of Industrial Relations
Workers’ compensation
Division of Workers’ Compensation
Unemployment compensation
Labor and Workforce Development Agency Employment Development Department
Regulations
Alcohol and drug rehabilitation
California Labor Code §1025 et. seq.
Unemployment compensation
California Unemployment Insurance Code §1256.5
Workers’ compensation
California Labor Code §3600(a)(4)
Drug-Free Workplace Act
California Government Code Ann. 8350-8351
California Government Code Ann. 8355-8357
San Francisco city ordinance
San Francisco Cal., Police Code Article 33A, §3300A.5
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document