A Look at Drug Testing, Privacy Rights and Last Chance Agreements

My employee provided a doctor’s note for recent time off that included information that he was out due to “cocaine poisoning.” With this information, can we require the employee to sign a last chance agreement and submit to weekly drug testing?

Putting aside the medical information that the employee disclosed voluntarily, the employer here is presented with a few issues related to drug testing and potentially drug rehabilitation leave.

Due to the right to privacy enshrined in the California Constitution, drug testing in California workplaces can be a tricky issue to navigate to avoid violating the privacy rights that employees still maintain in the workplace.

Drug Testing and Last Chance Agreements

In most circumstances, employers are limited to testing their employees only once 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.

Conversely, random drug testing is allowable only in very rare circumstances, such as employees in professions that are pervasively regulated by the government where the expectation of privacy is reduced; or the position is critical to public safety or protection such as truck drivers, aviation personnel and correctional officers.

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.

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.

Rehabilitation Leave

Private employers with 25 or more employees anywhere also should be aware that Labor Code Section 1025 requires employers to accommodate their California employees who wish to voluntarily enter and participate in an alcohol or drug rehabilitation program.

If the employee in this example presented the doctor’s note with information about substance abuse and also asked the employer for time off to allow for participation in a rehabilitation program, an employer with 25 or more employees would have to consider and provide that accommodation unless it imposes an undue hardship on the employer.

Undue hardship is a high burden for employers to meet and thus employers should consult with legal counsel before denying rehabilitation leave due to an undue burden.

Notwithstanding this provision of the Labor Code, employers do not have to accommodate active drug use and can take disciplinary steps, up to and including termination, under their drug- and alcohol-free workplace policy.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

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Matthew J. Roberts, a member of the CalChamber legal affairs team since July 2019, was named associate general counsel, labor and employment in October 2023. He explains California and federal labor and employment laws to CalChamber members and customers, and since October 2021 has served as manager of the Labor Law Helpline. He came to the CalChamber from the Shaw Law Group, P.C. of Sacramento, where he was a senior attorney, authored articles on emerging issues in employment law, and represented employers before state/federal employment law agencies. He received a B.A. in government from California State University, Sacramento and holds a J.D. from McGeorge School of Law, University of the Pacific, where he also served on the McGeorge Law Review as both a writer and primary managing editor. See full bio