Thank you for your patience. When determining whether an employer’s drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy. California statutes do not have specific procedures for drug testing, so it becomes “a balancing act”, however, employers are more likely to prevail if they take steps to diminish an employees’ privacy expectations, for example, by adopting a written policy explaining when drug testing will be required.
Here are some defenses, see if you can place yourself in any of the following protected classes of employees
1. Disability discrimination. An employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. So, if you can prove that any drug which shows up on your drug test was legitimately prescribed for you, this would exonerate you;
2. Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender – for drug testing could face a discrimination claim by the employee that was subjected to the drug testing;
3. Invasion of privacy. Even an employer that has a legitimate reason to test might violate an employee’s right to privacyin the way that the employer conducts the drug testing privacy in the way it conducts the test. For example, requiring an employee to disrobe or provide a urine sample in front of others could be a privacy violation of the employee’s right to privacy;
4. Defamation. An employee might have a valid claim against his employer for defamation of character, if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate.
So, if you can place yourself in one of the above 4 categories, you will be “home free. For example, if you can produce a valid prescription from your doctor for any drug that shows up on the drug test, again you will be “home free”. I wish I could give you more categories, but only the above are recognized under California law, so please do not hold that against me.
Please let me know if you need clarification on anything and I will be glad to explain further,
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