Abramson Church & Stave LLP

In past articles, we have discussed California’s Drug-Free Workplace Act, which applies to employers who have contracts with, or receive grants from, the State of California, as well as the testing requirements of the U.S. Department of Transportation. This article will address the right of private employers to test its employees in certain situations.

Employers who wish to test employees for drugs and alcohol must implement a policy setting forth the circumstances under which applicants and employees may be tested. For instance:

1. Pre-offer, applicant screening. Employers may require applicants to pass a pre-employment drug/alcohol screen as a condition of hiring.
2. Post-offer, pre-employment or annual physical examination. Employers may test individuals as part of a physical exam after they have made an offer of employment and before the individual actually begins their duties. Employees may also be tested as part of a routine annual or periodic physical examinations, provided that the exam is either part of a voluntary employee health program or is job-related and consistent with business necessity.
3. Reasonable suspicion. “Reasonable suspicion” is defined as suspicion based on specific, first-hand observations concerning the employee’s appearance, behavior, speech or breath odor. Once reasonable suspicion is established that the employee is under the influence of drugs or alcohol, the employee may be tested.
4. Post-serious injury or accident. Employees may be tested if they are seriously injured or are involved in a serious accident. However, the terms “serious injury” and “serious accident” must be defined in the policy. For example, “serious injury” may be defined as any fatality, injury to a third party resulting in medical treatment, or injury resulting in the employee being unable to return to normal duties by the next shift. “Serious accident” may be defined as property damage in excess of a specified dollar amount.
5. Random testing. Random testing of employees is allowed in the private employment setting only when the employee is engaged in safety-sensitive functions and the testing is job-related.

A drug and alcohol testing policy must include a voluntary consent form so that the employee can authorize the laboratory to perform the tests, as well as an authorization for the laboratory to release the test results to the employer. The policy should also contain procedural safeguards for testing and the disciplinary consequences of violating the company’s policy.

Drug and alcohol testing policies must be carefully written and comply with statutory format requirements. We recommend that employers seek the advice of competent legal counsel prior to implementing such a policy.