In the private sector, or for drug tests not covered by federal regulation (such as DOT drug testing), here is no law that states when a drug test must be performed or even if one must be performed. An employer is entitled to consider whatever information it receives from the drug test as it sees fit. Current drug use is not protected under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) or the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). However, past drug dependence is protected.
The harsh reality is employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.
There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.
Please look at my Avvo guide on medical examinations and confidentiality under the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=medical-information-and-the-ada--inquiries-and-confidentiality.
Employment rights come from the state and federal legislatures. One of the best things working people can do to improve their employment rights is to vote for candidates who have a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in the union already in place.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
This question may best be posed to an employment lawyer. From the perspective of a personal injury lawyer—it is a test of little value because it is fairly removed from the time of the incident. That said, depending on the results and tests performed, an expert may be able to extrapolate when any narcotic was ingested.
This response is not intended to act as legal advice. I am not licensed to practice law in any state other than the State of Illinois. No attorney-client relationship is formed until you sign an attorney-client agreement with my office.
I moved your post to employment law as that is more appropriate to your question. If the drug test was done at the request of law enforcement then he needs to consult a criminal defense attorney.
If you are a potential client, the information you disclose to us by email will be kept in strict confidence and will be protected to the full extent of the law. Please be advised, however, that the Law Offices of Frank M. Nunes, Inc. and its lawyers do not represent you until you have signed a retainer agreement with the firm. Until that time, you are responsible for any statutes of limitations or other deadlines for your case or potential case.
There is no time limit -- but there is if the resuls are invalid due to the delay!
Have your friend check with an attorney in California that works in the field of employment law if the results lead to something bigger!
Best of luck.
In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.
Not necessarily a criminal defense issue unless the test results somehow get into the hands of law enforcement.
Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555
California's constitution guarantees an individual's right to privacy but drug testing is permitted in the employment context in certain instances.
On the spectrum of instances when an employer may want to drug-test an employee, pre-employment screening is the most widely accepted and random testing is the least. The scenario presented falls somewhere in the middle. That said, Courts have generally upheld post-accident testing where an employer has reasonable suspicion that an employee involved in the accident was under the influence fo drugs and/or alcohol, or if the accident is a serious one. (See, International Brotherhood of Teamsters v. Dept. of Transportation, (9th Cir. 1991) 932 F.2d 1292.)
In sum, a Court would likely find the employer's demand for a drug-screen was reasonable and permitted under the circumsances.