California Pre-employment Drug Testing: What You Need to Know

Aug 5, 2019

In 2019, pre-employment drug testing has become common procedure. If you are currently job searching, you should expect that you will be drug tested before beginning work at a new job. Typically, testing is done after a conditional offer has been made and before the first day of work. Applicants agree to be tested as a condition of employment and are not hired if they fail to produce a negative test.

California drug testing laws specify that this is only legal if the employer is making the same conditional offers to other applicants for similar job postings. It cannot be done on a case-by-case basis for similar jobs. An employer doesn’t get to decide a potential hire might be on drugs and thus make that person’s offer conditional while another person doing the same job is not subjected to a drug test.

Why do employers test for drugs?

Drug testing is necessary for employers to promote and maintain a safe and healthy work environment.

It is obvious that you wouldn’t want to hire someone who could be under the influence to operate heavy machinery.

However, employers also want a conducive work environment. Individuals testing positive for drug abuse may exhibit decreased productivity, poor morale, and possibly worse.

Some of the goals of employers in performing drug testing include:

  • Complying with Federal and State regulations;
  • Detering the hiring of applicants who consume illegal substances;
  • Discourage employees from alcohol and drug substance abuse;
  • Identifying and assisting any employees with substance abuse problems;
  • Instilling confidence to the public that the organization’s members are performing their work safely

How do employers perform drug testing in California?

The most common form of drug testing is urine analysis.

This can be performed at any site selected by the employer, although many employers take steps to ensure the test is not tampered with.

Once a sample is collected, it is then sent off to a drug testing laboratory for analysis.

Typically, employers outsource drug testing to laboratories that are certified by the Substance Abuse and Mental Health Services Administration (SAMHSA), which is part of the U.S. Department of Health and Human Services (DHHS). However, this is only a requirement for government agencies and not for private organizations.

Below are certain procedures required by SAMHSA’s guidelines to ensure accuracy and validity of the testing process according to

  • Chain of Custody: A chain-of-custody form is used to document the handling and storage of a sample from the time it is collected until the time it is disposed.  It links an individual to his or her sample and is written proof of all that happens to the specimen while at the collection site and the laboratory.
  • Initial Screen: The first analysis done on a sample is called an initial screen.  This one test alone is not always accurate or reliable; there is a possibility of a false positive.  Thus, in the event that the initial screen is positive, a second confirmatory test should be done.
  • Confirmation Test:  A second, confirmation test (by gas chromatography/mass spectrometry or GC/MS) is highly accurate and provides specificity to help rule out any false positives (mistakes) from the initial screen.  For a test result to be reported as positive, the initial screen and confirmation test results must agree.
  • Split Sample:  A split sample is created when an initial urine sample is split into two.  One sample is used for the initial screen and, if positive, the second sample is used for the confirmation test.  If there is a positive result, the individual being tested may request the confirmation test be done at a different laboratory.  DOT’s alcohol and drug-testing regulations require all tests be performed using a “split sample” collection process.

Besides urine analysis, there are other, less commonly used procedures organizations can use to test for drugs, including:

  • blood drug tests
  • alcohol breath tests
  • hair drug tests
  • sweat drug screens
  • saliva drug screens

Legal claims arising from drug testing

Drug testing can give rise to several types of legal claims. Examples include:

  • Invasion of privacy. Employers sometimes are in violation of various privacy laws if they make private health information public. Additionally, the conducting of the drug testing itself sometimes leads to invasion of privacy claims if the employer requires the test be done in front of someone or has the person surveilled in some way.
  • Disability discrimination. Individuals on prescribed medications for a disability are protected by the Americans with Disabilities Act (ADA). Some of these may turn up on drug tests. Some prescribed drugs also would otherwise be illegal, such as opiates. If an applicant is declined employment due to a positive pre-employment drug test when the drug they tested positive for was a legally prescribed medication for a disability, the organization could be liable.
  • Discrimination. If an employer is singling out who they have tested, for example by race, gender, age, or religion, they would be opening themselves up to a discrimination claim.
  • Defamation. In the event an employer publicizes the fact that an applicant tested positive beyond those who have a need to know, the applicant would have a strong case against the employer.

Los Angeles Employment Attorneys

If you feel a potential employer has violated your rights, contact the Los Angeles employment attorneys at Rastegar Law Group today to setup a free and confidential case evaluation.

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