Random Drug Testing of Current Employees

Last month’s article discussed drug testing of job applicants. This article addresses random drug testing of current employees. “Random” drug testing programs are those where an employer informs employees that they may have to submit to drug testing at any time during their employment, for any reason, or for no reason at all.

Cases upholding random drug testing are limited to those involving employees in narrowly-defined, specific professions in highly regulated industries or where positions are critical to public safety or national security. The rationale is that employees in these fields have less of an expectation of privacy given the nature of their employment. Random drug testing has been upheld for truck drivers, pipeline workers, aviation employees, and correctional officers having contact with prisoners.

The justification needed to randomly test employees is as follows: the intrusion into the employee’s privacy must be justified by a compelling interest. In one case example, where random drug testing was not allowed, the court held that safety was not a compelling reason for testing a computer operator for a railroad company in a non-safety sensitive position, and that her firing for refusing to consent to the test was a breach of the employer’s covenant of good faith and fair dealing.

Unless the employee fits into these narrowly-defined exceptions, random drug testing is not allowed in California. So even though random drug testing is often the most effective program to detect and resolve drug abuse issues at the workplace, chances are that a random drug testing policy at your business would not be legal under California law.