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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6753
Experience:  Significant experience in all areas of employment law.
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We have a policy to have our employees take a drug testing.

Resolved Question:

We have a policy to have our employees take a drug testing. Recently, we wrote up a document that gave them 30 days to re-test. If the employee is within their 90 days can they be terminated after give this document?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good morning and thank you for entrusting me to answer your question.

I am not quite sure I understand what you mean when you say "If the employee is within their 90 days can they be terminated after give this document?" Can you explain?

Also, what sort of drug testing are you performing? Randomized testing, testing on the basis of reasonable suspicion, etc? Are you talking about testing employees only at the time they are first hired or at any time throughout employment?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

The situation is that we hired two employees that tested positive, we gave them a Warning form that stated they would need to re-take the test in 30 days. Unfortunately, the manager now says he would like to terminate their employment. Can we terminate?

Expert:  Patrick, Esq. replied 1 year ago.
Debbie,

Thank you very much for your reply. To be clear, were these employees tested at the time they were hired? Or have they already been working for a while at the time they were tested? If they had already been working for a while, was the test random or based on some sort of reasonable suspicion?

The answers to these questions are very important as drug testing is highly regulated in the state of Calfornia and termination cannot be premised on an improperly administered drug test.

Thank you so much.
Customer: replied 1 year ago.

Both of these employees were hired and given 30 days to take their Drug Testing. We have all new employees go to a specific Drug Testing Company. They both went to take their test just after the 30 days. We then notified of the test results.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much.

It's very good that these drug tests were administered at the onset of employment, as employers do enjoy the freedom to drug test all new employees. Since the test itself was permissible and employment in the state of California is "at will" absent an express agreement to the contrary (see Labor Code 2922), employment can be terminated at any time for any non-discriminatory reason that is not otherwise in violation of California law.

This means that, even if you previously indicated to these employees that they'd have another chance to take a drug test, you as an employer are absolutely within your legal rights to change your mind and terminate employees without providing them with another test. From the standpoint of an employer, the doctrine of "at will" employment is great because there is no requirement of "fairness"--employees can be fired, disciplined, and the terms of employment changed at any time regardless of whether the employee perceives the basis for such decision as justified or fair.

Since we are on the topic of drug testing, I should note that while it is legal to test employees at the onset of their employment as part of an intiial drug screening program, California law holds that randomized drug testing of existing employees is illegal unless the employer can demonstrate that the employees subject to random testing are working in a "safety sensitive" position, meaning a position in which there is a liklihood of significant bodily harm if the employee is careless or makes a mistake (e.g. forklift drivers, nurses, etc.). If the position is not safety sensitive, employees cano only be tested if there is reasonable suspicion of drug use.

Again, though, on the basis of the particualr facts you have described, the testing itself would be permissibe and the termination also permissible.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Satisfied Customers: 6753
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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