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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34132
Experience:  Retired (mostly)
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If an employee admits to being high on drugs to his supervisor

Customer Question

If an employee admits to being high on drugs to his supervisor and two witnesses is that sufficient grounds for termination in California.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
An employer does not need a reason to terminate an employee. Labor Code 2922 permits an employer to terminate an employee "at will" -- at any time, for any reason, or for no reason at all.

There are, of course, exceptions to the rule. Moreover, the facts as alleged in your question permit the possibility that the drugs on which the employee was allegedly high, could be prescribed by the employee's physician. If so, then that suggests the possibility of unlawful disability discrimination.

The point here is that were I the employer's legal counsel, I would be advising the employer to have the employee submit to a drug screen, before taking an adverse action -- because there is a risk of misunderstanding the true facts and circumstances.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 34132
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Does a drug screening include a drug test? If so, is a test done a week later sufficient?
Expert:  socrateaser replied 3 years ago.
A test that is not coincident with the discovery of the alleged drug useage may violate the employee's privacy rights under the California Constitution, Art. 1, Sec. 1.

"The primary focus of a state constitutional privacy claim in the employee drug testing context is a reasonable balancing test--balancing the drug test's intrusion on the reasonable expectations of the employee against the drug test's promotion of the employer's legitimate interests." Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179, 186-187, 65 Cal.Rptr.2d 297, 301 (emphasis added).

The point here is that an employee whose actual work is unaffected by the alleged drug use, and the absence of any substance-abuse safety issues (e.g., employee is a health care professional, lifeguard, figherfighter, peace officer, commercial driver, railroad engineer, nuclear engineer, power plant engineer, crane operator, etc.) wil almost certainly weigh in favor of the employee. Whereas, an employee who is involved in employment where safety issues are of concern, will weigh in favor of the employer.

There's no bright-line test here. The employer must determine whether the test is "business related and consistent with job necessity." 2 USCA § 12113(c).

I wish I could give you a clear "yes" or "no." However, your facts suggest that this may be difficult under the circumstances.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
Does a drug screening include a drug test? If so, is a test done a week later sufficient?


Second question:

Would a forced drug test administered promptly after the restaurant employee admits to his supervisor and others that he is high on marijuana also weigh in favor of the employee?
Expert:  socrateaser replied 3 years ago.
Does a drug screening include a drug test?

A: Drug screening = drug test.

If so, is a test done a week later sufficient?

A: It wouldn't be sufficient if I were the employer's legal counsel. Someone else might answer that it's entirely sufficient. There is no easy answer.

Would a forced drug test administered promptly after the restaurant employee admits to his supervisor and others that he is high on marijuana also weigh in favor of the employee?

A: Probably not. Even a server or buss person risks injuring customers by dropping food, plates, glassware or eating utensiles. So, a quick test based upon an employee's admission to using an controlled substance probably does not violate the employee's privacy rights, and thus weighs in favor of the employer.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.
To:Customer

The actual situation is that the employee's supervisor (my grandson) is apparently about to be fired because he sent the employee home and suspended him for 3 days as he didn't know the employee should have been tested.

Should a company policy be more iron clad if it included some sort of final written warning to the employee after a first drug offense and then a subsequent offense would be cause for termination?
Expert:  socrateaser replied 3 years ago.
Please click Accept for my answer to your original question, and I will be delighted to consider your new question.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.
I did that and then I got a message back that said my payment has already been processed.
Expert:  socrateaser replied 3 years ago.
Thank you for your contribution.

The actual situation is that the employee's supervisor (my grandson) is apparently about to be fired because he sent the employee home and suspended him for 3 days as he didn't know the employee should have been tested.

A: Ah! Totally different question. This isn't about the employee -- it's about the supervisor.

Should a company policy be more iron clad if it included some sort of final written warning to the employee after a first drug offense and then a subsequent offense would be cause for termination?

A: California employers are generally required to follow their own disciplinary policies -- where those policies are made in writing. If the employee handbook does not require a supervisor to immediately test a suspected drug user, then the supervisor can argue that he was using the discretion granted him by his job description and duties, and the failure of the employer to follow the disciplinary policy is a breach of contract by the employer.

This would give the supervisor damages for lost wages against the employer in the event that the supervisor is terminated.

The bad news is that the employer is still entitled to fire/terminate the supervisor, because as I previously mentioned, Labor Code 2922 permits the employer to terminate any employee whether or not the employer has a reason for the termination.

The obvious incentive for retaining the employee is that the employer could be on the hook for lost wages until the employee finds new employment.

The bad news is that win or lose, the employee will have to pay his litigation costs, unless the employee handbook or other employment contract between the employer and supervisor provides for prevailing party attorney's fees.

Hope this helps.

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