Workplace drug testing has been challenged on the basis that it violates the right to privacy. The right to privacy is derived primarily from the US and California Constitutions. The 4th Amendment of the U.S. Constitution guarantees the right to be secure in persons, houses, papers and effects against unreasonable search and seizures. This has been interpreted to mean that individuals have a reasonable expectation of privacy. Article 1 Section 1 of the California Constitution includes the inalienable right to privacy. There are also several other sources of privacy rights not relevant to this article.
Medical examinations generally are forbidden under the ADA and the California Fair Employment and Housing Act (FEHA) except where it is a (1) post-offer, pre-hire examination of an applicant that is “job related and consistent with business necessity,” or (2) an examination of an employee that is “job related and consistent with business necessity.”
Pre-Employment Drug Testing
California courts have found that job applicants have a lower expectation of privacy than employees. As a result, employers are permitted to conduct pre-employment drug testing as long as it is not conducted discriminatorily and the procedures are not unnecessarily intrusive. Tests should be performed by persons unrelated to the employer. In conducting a pre-employment drug test, it is a good idea to make job offers conditional on the drug test.
Random Drug Testing During Employment (Balancing Test)
California and federal courts have found a state and federal constitutional right to privacy, even though neither constitution specifically includes such a right. It is unlawful for employers to randomly drug test employees, because courts have found that the collection and testing of urine intrudes upon reasonable expectations of employee privacy.
However, where an employee is in a position affecting public safety or security, the employer may be able to show that its compelling interest in safety justifies the invasion of privacy posed by a drug testing program. To determine whether an employee’s position is safety-sensitive, the court will look at the degree, severity and immediacy of the harm posed to the employee, to other employees, and to the public. Random testing should be done by submitting the names of all employees in the position into a pool and allowing an independent testing facility to randomly select the employees to be tested.
Reasonable Suspicion Drug Testing During Employment
California courts have upheld drug-testing procedures based on “reasonable suspicion,” where there was evidence of drug or alcohol abuse.
Municipalities and industries may have their own drug testing rules and regulations. For example, there are strict federal and state laws regulating alcohol and drug testing in the transportation industry.
Additionally, while laws like the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) do not protect employees currently using drugs, they protect individuals who previously abused such substances and have been rehabilitated.
 These include privacy rights derived from common law, the National Labor Relations Act (with respect to concerted activity and surveillance), and other specific statutes (e.g., arrest records, Fair Credit Reporting Acts, Recording/Eavesdropping, Electronic Stored Communications Acts).
 42 U.S.C. § 12114(d)(1) does not prohibit drug testing applicants.
 Cal. Govt. Code § 12940(e)(3), (f)(2).
 Loder v. City of Glendale, 14 Cal.4th 846 (1997); Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (1989)(pre-employment drug testing policy did not substantially burden rights of privacy and “intrusiveness of drug-screening program is diminished when applicants have advance notice of the testing requirement”).
 Loder v. City of Glendale, 14 Cal.4th 846 (1997).
 Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (1989)(noting that procedures were designed to minimize intrusion into individual privacy where “samples are collected in a medical environment, during the preemployment physical, by persons unrelated to the employer” and other medical information was kept confidential).
 Pilkington Barnes Hind v. Superior Court, 66 Cal.App.4th 28 (“a job applicant, who requests and receives a delay in submitting to the preemployment drug test permitted by Loder until after the start of employment, may not evade the employer’s testing requirement postemployment on the ground the applicant thereby became an “employee” and is, consequently, immune from such testing”).
 Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (1990), citing Central Valley Chap. 7th Step Foundation v. Younger, 95 Cal. App. 3d 212, 234 (1979); Semore v. Pool, 217 Cal.App.3d 1087, 1098 (1990)(privacy interests of an employee terminated for refusing a compelled drug test implicate a fundamental public policy).
 Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (1990)(affirming jury verdict for employee on wrongful termination based on refusal to submit to unannounced urine drug test by employer); Wilkinson v. Times Mirror Corp., 215 Cal. App. 3d 1034 (1989)(collection and testing of urine intrudes upon reasonable expectations of privacy).
 Smith v. Fresno Irrigation District, 72 Cal.App.4th 147 (1999)(random drug testing upheld for employees in “safety-sensitive positions” because the expectation of privacy was outweighed by the employer’s “legitimate and substantial” safety reasons); see also Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (1990), citing Harmon v. Thornburgh, 878 F.2d 484, 491 (D.C. Cir. 1989)(“legitimate interest in protecting public safety could justify the suspicionless drug-testing of some employees”). These cases rely on the US Supreme Court cases Skinner and Von Raab. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989)(drug and alcohol testing of all crew members on a train involved in accident constitutional); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989)(drug testing employees seeking transfer or promotion within the US Customs Service constitutional given the employee’s direct involvement in drug interdiction, requirement to carry a firearm or the necessity of handling “truly sensitive information”).
 Smith v. Fresno Irrigation District, 72 Cal.App.4th 147 (1999).
 Kraslawsky v. Upper Deck Co., 56 Cal.App.4th 179, 182 (1997)(court did not dispute lawfulness of suspicion-based testing where employee had agreed to suspicion-based testing as a condition of employment).
 See Department of Transportation regulations at 49 CFR 40 and 49 CFR 382.