Are employers in California legally allowed to test employees for drugs or alcohol?

Editor's Note: Effective Jan. 1, 2024, California Assembly Bill 2188 amends the Fair Employment and Housing Act (FEHA) and will prohibit employers from penalizing workers for using marijuana during their off-work hours. Employers can still fire or suspend workers for possessing, using or being impaired by marijuana while at work. See California Law Will Protect Employees' Use of Marijuana Outside Work.

California state law regulates workplace drug testing for private sector employers. California case law and the California Constitution’s privacy protections also impact workplace drug testing.

The law does not specifically prohibit employers from conducting drug testing on applicants. Employers are generally allowed to drug test applicants on a pre-employment basis, provided that pre-employment drug tests are implemented and conducted in a fair and consistent manner to all applicants who are applying for a position within a specific job class.

However, with limited exceptions, employers are prohibited from requiring or conducting drug tests on existing employees. Employers may require a drug test of existing employees only in the following circumstances:

• Reasonable grounds or suspicion exist and justify a drug test.
• There is a clear and present physical danger to the employee, other employees or members of the general public.
  

Additional requirements exist under the Federal Motor Carriers Safety Administration, the Federal Railroad Administration (FRA), the Federal Aviation Administration (FAA), the Federal Transit Administration (FTA), the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the United States Coast Guard (USCG). Employers covered by any one of these acts are responsible for conducting a controlled substances and alcohol testing (CSAT) program that includes pre-employment testing, postaccident testing, random testing and reasonable suspicion testing.