Marijuana may be legal in California, but employers can still choose to require a pre-employment drug test.
Marijuana is legal in California, and unemployment rates remain low. Meanwhile, workplace drug tests yielding positive results are hitting record highs. What should California employers do about pre-employment drug testing?
Positive Drug Test Hits 14-Year High
Positive workplace drug tests increased 4.4 percent between 2017 and 2018, according to an annual Quest Diagnostics Analysis. Marijuana continues to be the most commonly detected illicit substance, increasing almost 17 percent since 2014. The good news is positive results for opiates, heroin and cocaine are declining.
In California, the positive drug test rate is lower than the national average (3.7 percent vs. 4.4 percent). Northern California, along the Nevada border, has the highest percent of positive drug tests in all of California, followed by the Northern California coast.
“Our in-depth analysis shows that marijuana is not only present in our workforce, but use continues to increase,” said Barry Sample, PhD, senior director, science and technology, Quest Diagnostics in a press release.
California Employers Can Still Conduct Pre-Employment Drug Testing
California employers can still maintain a drug- and alcohol-free workplace, which includes marijuana, regardless of whether it is used recreationally or medicinally. Similarly, employers are not prohibited from conducting pre-employment drug testing for marijuana use.
Employers have many legitimate business reasons to conduct pre-employment drug testing. Eliminating substance abuse in the workplace can reduce health insurance costs, improve employee productivity and reduce the likelihood of accidents, which adversely affect workers’ compensation costs.
Medical marijuana is not protected under the Americans with Disabilities Act (ADA) nor the Fair Employment and Housing Act (FEHA). Because marijuana is still illegal under federal law, the California Supreme Court found that marijuana did not have the same legal status of other legal prescription drugs.
Employers have the right to pre-employment drug testing and should continue to be mindful of federal law.
How To: Oversee Pre-Employment Drug Testing
In general, drug testing is not required by law. Not only is it not required, but California’s constitutional guarantee of an individual’s right to privacy places additional restrictions on the ability of California employers to conduct drug testing.
If you wish to require pre-employment drug testing for applicants, you should follow these guidelines.
1. Know When You Can Test Applicants
Most employers can require an applicant to successfully pass a pre-employment drug test as a condition of hiring.
Decide whether drug testing is required for all positions or just those with potential safety concerns. Be consistent. Apply the testing requirement equally to either all job applicants or to all job applicants for a certain type of position or in a certain job class.
Check local ordinances in locations where you conduct business or have employees to determine whether any municipal regulations relate to drug testing.
2. Communicate Drug Testing Requirements
If your job offer is contingent on a drug test, be sure to note in the employment letter that the offer depends on the applicant successfully passing the exam. Pre-employment drug testing for marijuana is still permitted in California. However, it is a good idea to inform applicants in advance if marijuana will be tested and whether employment will be denied if the test is positive. For more information, see Adult Use of Marijuana Act.
The testing facility should obtain the applicant’s written consent to the drug test. If an applicant refuses to take a drug test, you can refuse to hire him or her.
3. Require Drug Test After Offer
Pre-employment drug testing should be performed after an offer of employment has been made. Don’t test all applicants for the job, only those you are offering the position to and as a condition of hire. Waiting until after an offer has been made will also help the employer steer clear of pre-employment inquires that could be considered unlawful, such as inquiring about a prescription drug that might show up in the drug testing.
4. Use An Independent Testing Facility
It is not advisable for employers without the proper license to directly administer drug tests. Employers should use an independent testing facility instead, and the facility should be an appropriate medical environment with properly trained personnel and written protocols for collecting samples.
Although kits for drug testing are readily available, they should not be used. There is a risk that the sample might be compromised and the accuracy of the results may be questionable.
Employers who fail to use independent testing facilities may have the results of a positive test challenged.
5. Be Certain of Results
Be certain that the applicant successfully completed the drug test and that you have the results before you allow the person to start work. Plan in advance for how you will handle applicants that test positive for illegal drug use, including marijuana use. Treat all positive results the same to avoid charges of discrimination.
6. Handle Results Appropriately
The results of the pre-employment drug test should only be disclosed to a person who “needs to know” the information, such as a hiring manager or human resources manager. Consider designating a specific person who will receive the lab results. Plan in advance to protect the confidentiality of drug testing records and treat them as confidential medical information in files separate from personnel files.