Navigating Drug Testing, Substance Use in Today’s Workplace

In this episode of The Workplace podcast, CalChamber Associate General Counsel for Labor and Employment Matthew Roberts and CalChamber General Counsel for Labor and Employment Bianca Saad explore how California employers can navigate drug and alcohol issues in the workplace amid evolving legal standards.

They examine the balance between maintaining workplace safety and complying with employee protections. Legalization of cannabis for recreational use and recent amendments to the California Fair Employment and Housing Act (FEHA) that provide additional protections for cannabis use and alter cannabis testing can make striking this balance difficult.

Throughout the episode, Roberts and Saad focus on three topics for employers:

• Maintaining and enforcing a drug- and alcohol-free workplace policy;
• Compliant drug testing protocols; and
• Accommodations for recovery from drug and alcohol abuse under the law.

Saad emphasizes that employers still can enforce drug- and alcohol-free workplace policies, regardless of whether certain substances are legal. These policies should clearly communicate a zero-tolerance approach to workplace intoxication and outline enforcement mechanisms, while also accounting for nuanced situations, such as company-sponsored events where alcohol is served.

Drug testing remains one of the most complex aspects of compliance. Employers may always conduct pre-employment drug testing as a matter of policy, including testing for cannabis, but need to ensure the method for testing for cannabis complies with the FEHA.

Saad also explains that drug testing current employees is more restricted due to California’s privacy laws. Generally, reasonable suspicion testing based on observable signs of impairment is permitted, while random or post-accident testing may require consultation with legal counsel.

Lastly, Saad and Roberts address employee protections related to substance abuse. While employers may discipline an employee for on-the-job intoxication, they also may be required to accommodate requests for leave to attend rehabilitation programs under California law, the FEHA or the Americans with Disabilities Act (ADA).