In most circumstances, employers are limited to testing their employees only when the employer has a reasonable suspicion that the employee is violating a drug- and alcohol-free workplace policy. That is, the employee is under influence while at work.
Last chance agreements, however, may allow an employer to set up a regular drug testing program for individual employees based upon specific circumstances. Last chance agreements are contracts between employers and employees that are used in lieu of terminating an employee.
In this specific example, an employer may terminate this employee for admitting to illicit drug use. However, the employer may not want to terminate the employee but instead give the employee the chance to correct the behavior and maintain their employment subject to the employee meeting the conditions of the last chance agreement.
Because the employer is granting the employee continued employment, the agreement can set conditions overriding an employee’s privacy rights such as regular or random drug testing.
However, employers should be aware that, effective January 1, 2024, California prohibits discrimination on the basis of an applicant’s or employee’s off site and off-duty use of cannabis. Employees may still conduct drug testing for cannabis when otherwise permissible, but the test must be a valid screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Employers screening for cannabis should work with their legal counsel and testing providers to ensure they are in compliance with California law.
Last chance agreements should be drafted by legal counsel but should expressly include any conditions that the employee must meet. If they are not expressly provided in the agreement, such as expressly describing what type of drug testing the employee will be subject to, the employer may not be able to carry out that weekly or random drug testing.
Read more about Drugs and Alcohol in the HR Library.
