When testing is permitted
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Pre-employment: An employer can require a drug and alcohol test after a conditional job offer but before the employee begins work, provided the policy applies consistently to all applicants for that position.
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Reasonable suspicion: If an employer has specific, observable evidence (based on appearance, behavior, speech, or body odors) that an employee is under the influence of alcohol, they can require testing.
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Post-accident: Testing is allowed following a serious workplace accident, particularly if there's reasonable suspicion alcohol was a contributing factor.
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Safety-sensitive positions: Random alcohol testing may be permissible in very limited circumstances for employees in positions deemed safety-sensitive, where impairment could pose a direct threat to safety, such as operating heavy machinery or in transportation industries regulated by the Department of Transportation (DOT).
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Federal requirements: Certain federal laws, like the Drug-Free Workplace Act of 1988, mandate testing for employers holding federal contracts or grants above a certain value.
What's generally not allowed
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Random alcohol testing: Random alcohol testing without reasonable suspicion is generally prohibited in California for most positions.
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Discrimination: Testing must be conducted fairly and cannot be based on an employee's protected characteristics (race, gender, etc.).
Employee rights
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Privacy: California law recognizes an employee's right to privacy, which must be balanced against the employer's need for a safe workplace.
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Notice: Employers should provide employees with notice of their alcohol testing policy, outlining when and why testing might occur.
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Confidentiality: Test results must be kept confidential and shared only with individuals who have a legitimate need to know.
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Second opinion: Employees have the right to request a second opinion from an independent testing facility if they dispute the results of an alcohol test.