1. Threading the Drug Testing Needle: A Guide for California Public Employers
Teresa L. Stricker & Ryan McGinley-Stempel
November 21, 2019
CALPELRA Annual Training Conference
November 21, 2019

2. Threading the Drug Testing Needle
Dramatic State Law Changes – Legalization of Cannabis
Federal Prohibitions and Affirmative Duties for Public Employers
Limits on Public Employer Drug/Alcohol Testing
State and Federal Constitutions
Americans with Disabilities Act
Fair Employment and Housing Act
Local Ordinance or Policy
Common Law
Duty to Bargain

3. Dramatic State Law Changes: Legalization of Cannabis
November 21, 2019

4. Dramatic State Law Changes: Legalization of Cannabis
Total Illegality
Legalized Medical Use
Decriminalized limited possession from a misdemeanor to an infraction
Legalized recreational use.
(People v. Lee (Cal. Ct. App. D ) 2019 WL , at p. *5.)

5. Dramatic State Law Changes: Legalization of Cannabis (II)
The most recent of these stages— legalization of recreational use — occurred in 2016 when voters approved Proposition 64 or the Adult Use of Marijuana Act,
Legalized use and limited possession by adults 21 years of age and older. (Health & Safety Code, §  , subd. (a)(1).)

6. Federal Prohibitions & Affirmative Duties
November 21, 2019

7. Federal Controlled Substances Act
The federal Controlled Substances Act (“CSA”) prohibits possession of cannabis and makes it unlawful for any person to knowingly and intentionally distribute cannabis. (21 U.S.C. §§ 844(a), 841(a)(1).)
California courts have held that the CSA does not preempt California’s laws legalizing recreational or medical cannabis use.
Smith v. Superior Court (2018) 28 Cal.App.5th Supp. 1, 5-6
City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 390

8. Federal Drug-Free Workplace Act
The federal Drug-Free Workplace Act (“DFWA”) requires federal grant recipients to prohibit unlawful drug use and other drug-related activity at the employer’s worksites. (See 41 U.S.C § § 8101(a)(5), )
Failure to comply may result in suspension or termination of grants and disqualification for future grants for up to 5 years. (41 U.S.C. § 8103(b); see also Executive Order – Debarment and Suspension.)

9. Federal Drug-Free Workplace Act (II)
The DFWA does NOT require:
A drug testing program
Regulation of off-duty conduct of employees
Parker v. Atlanta Gas Light Co. (S.D. Ga ) 818 F. Supp. 345, 346
Noffsinger v. SSC Niantic Operating Company LLC (D. Conn. 2017) 338 F.Supp.3d 78, 84.

10. Limits on Public Employer Drug & Alcohol Testing: State and Federal Constitutions
November 21, 2019

11. State & Federal Constitutions
Drug or alcohol testing by a public employer – whether through urinalysis or a blood test – constitutes a search and seizure under the Fourth Amendment of the federal Constitution and implicates privacy rights under the state Constitution.
Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602,
Nat’l Treasury Employees Union v. Von Raab (1989) 489 U.S. 656,
Loder v. City of Glendale (1997) 14 Cal.4th 846, 853, 876

12. Reasonable Individualized Suspicion
Generally, under the state or federal constitution, a drug or alcohol test must be based on “reasonable individualized suspicion” of wrongdoing.
Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646
Loder, 14 Cal.4th at p. 897

13. Consent is Not Enough!
Under state constitution: “[a] search otherwise unreasonable cannot be redeemed by a public employer’s exaction of a ‘consent’ to the search as a condition of employment.”
Loder, 14 Cal.4th at p. 886 & fn. 19
Under federal constitution: “[e]mployees who must submit to a drug test or be fired are hardly acting voluntarily, free of either express or implied duress and coercion.”
Am. Fed’n of State, County & Mun. Emps. Council 79 v. Scott (11th Cir. 2013) 717 F.3d 851, 874

14. Exception: Suspicionless Testing Permissible When Job is Safety- or Security-Sensitive
Neither the federal nor state Constitution prohibits public employers from requiring drug or alcohol testing for employees holding safety- or security- sensitive positions.
Courts uphold suspicionless drug or alcohol testing of employees holding such positions.

15. What Jobs Are Safety- or Security-Sensitive?
Railway crews. (Skinner, 489 U.S. 602.)
Employees with “routine access to dangerous nuclear power facilities.” (Skinner, 489 U.S. at p. 628.)
Customs employees who “engage[] directly” in preventing drug trafficking. (Von Raab, 489 U.S. at p )
Customs employees required to carry firearms. (Von Raab, 489 U.S. at p )

16. What Jobs Are Safety -or Security-sensitive? (II)
Police Officers. (Carroll v. City of Westminster (4th Cir. 2000) 233 F.3d 208, 213.)
“[L]aw enforcement personnel who carry firearms.” (AFSCME Council 79 v. Scott (11th Cir. 2013) 717 F.3d 851, 858.)
Customs employees who handle “truly sensitive information.” (Von Raab, U.S. at p. 678.)
Parole or probation officers and their field service assistants. (Int’l Union v Winters (6th Cir. 2004) 385 F.3d 1003, , )

17. What Jobs Are Safety -or Security-sensitive? (III)
Correctional officers who have contact with prisoners. (Taylor v. O’Grady (7th Cir ) 888 F.2d 1189, 1199; Am. Fed’n of Gov. Emps., AFL-CIO v. Roberts (9th Cir ) 9 F.3d 1464, 1468.)
Correctional employees who do not have custody of prisoners but work within the perimeter of the correctional facilities. (Int’l Union, 385 F.3d at 1006 & n.3, 1010, )

18. What Jobs Are Safety- or Security-Sensitive? (IV)
Employees who provide health care and psychological care to prisoners. (Int’l Union, 385 F.3d at 1006, )
Employees who provide services to residents at hospitals for the mentally ill and developmentally disabled and to residents of veterans’ homes. (Int’l Union, 385 F.3d at 1006, )
Medical residents. (Pierce v. Smith (5th Cir. 1997) 117 F.3d 866, 874.)
“[A]ny hospital employee who is involved in direct, hands-on patient care,” including currently employed hospital scrub technicians. (Kemp v. Claiborne County Hosp. (S.D. Miss. 1991) 763 F. Supp. 1362, 1368.)

19. What Jobs Are Safety- or Security-Sensitive? (V)
MAYBE school employees:
The Fifth, Sixth, and Eleventh Circuits have upheld testing of school custodians, substitute teacher applicants, and teachers based on the concern for the safety of schoolchildren and the maintenance of an environment in which education can take place.
Aubrey v. School Bd. of Lafayette Parish (5th Cir. 1998) 148 F.3d 559 [school custodians]
Knox County Educ. Assn. v. Knox County Bd. of Educ. (6th Cir ) 158 F.3d 361, 367 [teachers]
Friedenberg v. School Board of Palm Beach County (11th Cir ) 911 F.3d 1084, 1104 [substitute teacher applicants]
Other courts have refused to find that school employees are safety-sensitive.
Am. Fed’n of Teachers-West Virginia, AFL-CIO v. Kanawha County Bd. of Educ. (S.D. W. Va. 2009) 592 F. Supp. 2d 883, [teachers]

20. What Jobs Are Safety- or Security-Sensitive? (VI)
Firefighters. (Hatley v. Department of Navy (Fed. Cir ) 164 F.3d 602.)
Employees who operate “heavy machinery or large vehicles.” (AFSCME Council 79 v. Scott (11th Cir. 2013) 717 F.3d 851, 858.)
Employees who are involved with “the operation of natural gas and liquified natural gas pipelines.” (Lanier, 518 F.3d at p. 1152.)

21. What Jobs Are Safety- or Security-Sensitive? (VII)
“[C]onstruction and maintenance workers” who operate power tools and heavy equipment in close proximity to fellow workers. (Smith, 72 Cal.App.4th at p. 162.)
“[C]ertain categories of employees in [an employer’s] chemical plant.” (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1098, fn. 6.)
Housekeeping staff on an offshore oil drilling platform. (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1994) 23 Cal.App.4th 51, 66-67, as modified on denial of reh’g.)

22. What Jobs Are Safety- or Security-Sensitive? (VIII)
Positions “involving the operation of dangerous instrumentalities, such as trucks that weigh more than 26,000 pounds, that are used to transport hazardous materials, or that carry more than fourteen passengers at a time.” (Lanier, 518 F.3d at p )

23. What Jobs Are Safety -or Security-sensitive? (IX)
Employee whose “job duties included driving City vehicles and transporting co-workers, operating heavy groundskeeping equipment, handling pesticides, and working in high-risk areas such as highway medians.” (Bryant v. City of Monroe (5th Cir ) 593 F. App’x 291, 297.)
“[E]mployees operating motor vehicles carrying passengers.” (Smith, 72 Cal.App.4th at p. 160.)

24. What Jobs are Not Safety -or Security- Sensitive?
Candidates for public office. (Chandler v. Miller (1997) 520 U.S. 305, 321.)
An executive secretary for a company vice- president and marketing director. (Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179, 183, 188.)

25. What Jobs are Not Safety -or Security- Sensitive? (II)
“[A] clerk, for example, cannot be subject to suspicionless drug testing under the theory that she presents some vague and indefinite safety risk.” (AFSCME Council 79, 717 F.3d at p. 877.)
“[A]n office employee ‘presenting a danger when driving a car in the workplace parking lot.’” (AFSCME Council 79, 717 F.3d at p. 877.)

26. What Jobs are Not Safety -or Security- Sensitive? (III)
“[A]n office employee falling prey to the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high stair cases, to files on high shelves, to wet floors, to elevators and escalators).” (AFSCME Council 79, 717 F.3d at p. 877.)
Employees who work at specialized residential schools for at-risk youth who had “very limited contact with students and [bore] no responsibility for maintaining” zero tolerance policy prohibiting student drug use. (Nat’l Fed’n of Fed. Emps. v. Vilsack, (D.C. Cir. 2012) 681 F.3d 483, )
Debt collectors. (Aro v. Legal Recovery Law Offices, Inc. (Cal. App. Apr. 8, 2015) 2015 WL , at *6.)

27. What Jobs are Not Safety -or Security- Sensitive? (IV)
Accountants
Accounting Technicians
Animal Caretakers
Attorneys
Baggage Clerks
Co-Op Students
Electric Equipment Repairers
Mail Clerks/Assistants
Messengers
(Von Raab, 489 U.S. at p.78.)

28. Constitutional Limits on the Method of Collecting Samples
Even when drug and alcohol testing is constitutionally permissible, constitutional pitfalls abound in the method in which a public employer administers such a test.

29. Blood Tests
Blood tests are not “an unduly extensive imposition on an individual’s privacy and bodily integrity.”
(Skinner, 489 U.S. at p. 625, quotations omitted).
(Missouri v. McNeely (2013) 569 U.S. 141, 159, citing Skinner, 489 U.S. at pp )

30. Urine Tests
But “[a] more difficult question is presented by urine tests” because “the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests.” (Skinner, 489 U.S. at p. 626.)
Courts have invalidated urine tests where the collection method is determined to unnecessarily intrude on privacy interests.

31. Urine Tests (II) Indirect “Aural” Monitoring Is OK
Courts are more likely to uphold urine collection tests that provide for indirect “aural” monitoring where the monitor is in the room during the test and can hear, but is not in a position to visually observe, the collection. 
(Vernonia School Dist. 47J, 515 U.S. at p. 657.)
“[A]ll the leading cases observe that such indirect monitoring is minimally intrusive.”
(Loder, 14 Cal.4th at p. 925 [conc. and dis. opn. of Chin, J.].)
Direct Visual Monitoring Is NOT OK
Direct visual monitoring of urine samples is “particularly intrusive” and has only been upheld in very limited circumstances outside of the employment context.  
(See Hill, 7 Cal.4th at p. 43 [NCAA athlete testing].)

32. Do’s Don’ts Urine Tests Do rely on trained medical staff
Do administer at a medical facility if possible
Do collect the sample immediately after it has been produced in a private setting
Do not use visual monitoring of urine collection

33. Job Applicants? Loder leads the way?
In Loder v. City of Glendale (1997) 14 Cal.4th 846, the California Supreme Court held that employers may subject applicants to suspicionless testing as part of an onboarding medical examination regardless of whether they will hold security- or safety-sensitive positions.

34. Job Applicants? (II)
Not so fast—Lanier v. City of Woodburn (9th Cir ) 518 F.3d 1147
The Ninth Circuit, however, has applied the same standard to job applicants that applies to current employees.

35. Lanier v. City of Woodbridge
Lanier applied to be a page at the city’s public library, where she would “perform tasks such as retrieving books from the book drop and returning them to the shelves” and “[o]ccasionally, staff the desk in the youth services area, where materials for children and teenagers are housed.” (Lanier, supra, 518 F.3d at p )
The city “gave Lanier a conditional offer of employment, subject to successful completion of a background check and pre-employment drug and alcohol screening,” and rescinded offer after Lanier refused to be tested. (Ibid.)
The Ninth Circuit concluded that “[the city] has not articulated any special need to screen Lanier without suspicion” and that the court “discern[ed] no substantial risk to public safety posed by Lanier’s prospective position as a part-time library page.” (Id. at p )

36. Harmonizing Loder & Lanier?
It is possible that these cases may be harmonized on the ground that, unlike in Loder, the drug testing in Lanier was not administered as part of a medical examination in which the applicants already had a reduced expectation of privacy.
But at least one district court in the Ninth Circuit has rejected the argument that applicants for non- safety- or non-security sensitive positions may be subject to pre-employment medical exams without justification.
(Taylor-Failor v. County of Hawaii (D. Hi. 2015) 90 F. Supp. 3d 1095, 1101.)

37. Does Loder or Lanier Govern California Public Employers? It Depends.
A federal court in California would be required to follow the Ninth Circuit’s interpretation of the federal constitution in Lanier rather than the California Supreme Court’s conflicting interpretation.
(See Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 772.)
But a state court would be required to follow Loder if there is no U.S. Supreme Court authority on point unless and until the California Supreme Court overrules Loder.
(See Tanguilig v. Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 673.)
Practice tip: Follow the more restrictive rule in Lanier to be safe!

38. Limits on Drug & Alcohol Testing: Americans with Disabilities Act
November 21, 2019

39. Americans with Disabilities Act (“ADA”)
The ADA prohibits both “medical examinations” and ”disability-related inquiries” unless the examination or inquiry is
“shown to be job-related” and
“consistent with business necessity.”
(42 U.S.C. § 12112(d)(4)(A).)
A “medical examination” is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”
A “disability-related inquiry” is a “question (or series of questions) that is likely to elicit information about a disability.”
(Bates v. Dura Automotive Sys., Inc. (6th Cir. 2014) 767 F.3d 566, 574, citing EEOC July 2000 Guidance.)

40. ADA: When is Drug Testing a Medical Examination?
Under the ADA, “a test to determine the illegal use of drugs shall not be considered a medical examination.” (42 U.S.C. § 12114(d).)
“The term ‘illegal use of drugs’ means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.” (42 U.S.C. § 12111(6)(A).)
The term “illegal use of drugs” “does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.” (42 U.S.C. § 12111(6)(A).)

41. ADA: When is Drug Testing a Medical Examination? (II)
Thus, testing for cannabis, other federally banned substances, or prescription drugs without a prescription is not a “medical examination” under the ADA.
The Ninth Circuit has concluded this applies even to medical use of cannabis that is lawful under state law because such use remains unlawful under federal law:
James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 405

42. ADA: When is Alcohol Testing a Medical Examination?
Unlike illegal drugs, the ADA does not expressly exempt testing for alcohol use from the definition of a “medical examination.”
As one court has explained, the EEOC “guidance itself gives contrary instructions on alcohol testing” and the circumstances under which it constitutes a medical examination. (Bates v. Dura Automotive Sys., Inc. (6th Cir. 2014) 767 F.3d 566, 577.)

43. ADA: When is Alcohol Testing a Medical Examination? (II)
On the one hand, EEOC guidance notes that “Medical examinations include, but are not limited to blood, urine, and breath analyses to check for alcohol use” and that employers cannot give alcohol tests to job applicants because such tests “are medical, and there is no statutory exemption.” (EEOC July 2000 Guidance; EEOC October Guidance.)
On the other hand, the EEOC guidance states that employers “may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose” upon reasonable suspicion. (EEOC July Guidance.)
In some circumstances, testing for alcohol may nevertheless be justified by business necessity for safety- or security- sensitive roles.

44. ADA: When is Drug/Alcohol Screening a Disability-Related Inquiry?
BEFORE TESTING: Requiring an employee to disclose use of legally-prescribed medications before administering a drug test may constitute a disability- related inquiry in violation of the ADA.
Williams v. FedEx Corporate Servs. (10th Cir. 2017) 849 F.3d 889, 901
Bates v. Dura Automotive Sys., Inc. (6th Cir. 2014) 767 F.3d 566, 578
AFTER POSITIVE TEST: An employer may ask applicants or employees about their lawful drug use “if an applicant [or employee] tests positive for illegal drug use.” (EEOC October 1995 Guidance.)
Practice Tip: It may be safer to require post-testing disclosure be made to a third party, who then relays information about only safety- or security-restricted medications to the employer. (Bates, 767 F.3d at p. 579.)

45. ADA: When is Drug/Alcohol Screening a Disability-Related Inquiry?
The EEOC has explained that disability-related inquiries may include “asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications.” (EEOC July 2000 Guidance.)
But an employer may “ask[] an employee whether s/he has been drinking” without implicating the ADA’s prohibition against “disability-related inquiries.” (EEOC July 2000 Guidance.)

46. ADA: Job-Related and Consistent with Business Necessity?
“In limited circumstances, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.”
(EEOC July 2000 Guidance.)
“[T]he business necessity standard may be met even before an employee’s work performance declines if the employer is faced with significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.”
(Brownfield v. City of Yakima (9th Cir. 2010) 612 F.3d 1140, )

47. ADA: Job-Related and Consistent with Business Necessity? (II)
Courts have concluded that the following medical examinations/inquiries were justified by business necessity given the employee’s safety- or security-sensitive role:
Asking an employee whether his medication might affect his ability to drive safely where driving was an essential part of his job even though he was never involved in any automobile accidents on the job.
Kirkish v. Mesa Imports, Inc. (9th Cir. 2011) 442 F. App’x 260,
Conducting random breath alcohol tests of probationary employees in safety-sensitive positions.
E.E.O.C. v. U.S. Steel Corp. (W.D. Pa. Feb. 20, 2013) 2013 WL , at p. *20 & fn. 13
Conducting psychological examination of police officer who had exhibited highly emotional responses on numerous previous occasions.
Brownfield v. City of Yakima (9th Cir. 2010) 612 F.3d 1140, 1146

48. Limits on Drug & Alcohol Testing: FEHA
November 21, 2019

49. FEHA
The Fair Employment and Housing Act (FEHA) prohibits California employers from discriminating in employment on the basis of physical or mental disability.
(See Gov. Code, §§ 12935, subd. (a), )

50. FEHA – Unlawful Substances
Like the ADA, the FEHA specifically provides that:
“the unlawful use of controlled substances or other drugs shall not be deemed, in and of itself, to constitute a mental [or physical] disability” for purposes of the provisions of the act prohibiting discrimination on the basis of mental or physical disability.
(Gov. Code, § 12926, subds. (i), (k).)

51. FEHA – Duty to Accommodate Marijuana?
The California Supreme Court has held that a “plaintiff cannot state a cause of action under the FEHA based on [a defendant employer’s] refusal to accommodate his use of marijuana.”
Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 931

52. FEHA After Prop 64?
Proposition 64—the measure legalizing adult- use cannabis in California—expressly provided that it did “not amend, repeal, affect, restrict, or preempt”:
“[t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.”
(Health & Safety Code, §  , subd. (f).)

53. FEHA After Prop 64? (II)
Practice Tip: Keep an eye on new legislative developments and court decisions in this rapidly evolving area of the law.
E.g., Proposed Assem. Bill No ( Reg. Sess.)

54. Limits on Drug & Alcohol Testing: Local Ordinance or Policy
November 21, 2019

55. Local Ordinance or Policy
Some localities in California have ordinances that prohibit employers from randomly testing employees for drugs and alcohol except in limited circumstances.
E.g., San Francisco
Practice Tip: Don’t forget to
check local laws

56. Limits on Drug & Alcohol Testing: Common Law
November 21, 2019

57. Implied Contract & Defamation
In Shepherd v. Kohl’s Department Stores, Inc. (E.D. Cal. Aug. 2, 2016) 2016 WL , an at-will employee discharged for a positive marijuana test despite having a medical marijuana card sued his employer, alleging that the employer:
breached an implied contract and covenant of good faith and fair dealing by terminating him in violation of its own policies that specifically protected individuals who were medical marijuana users in certain states from being terminated or discriminated against on that basis; and
defamed him by representing in the termination form that he was impaired at work.

58. Implied Contract & Defamation (II)
The court permitted the implied contract claim to go forward because:
“a reasonable jury could conclude from defendant’s policies and plaintiff’s testimony that the parties agreed, subsequent to his 2006 acknowledgment of the at-will nature of his employment, that plaintiff would not be discriminated against for his medicinal marijuana use, since he was a registered medical marijuana cardholder.” (Shepherd, 2016 WL , at p. *10.)

59. Implied Contract & Defamation (III)
The court permitted the defamation claim to go forward because the employer’s representations in the termination form about the plaintiff being impaired at work were not supported by sufficient evidence given the difficulty of distinguishing off- duty from on-duty cannabis-use or with current testing technology.
“[G]iven the dearth of evidence presented by defendant of plaintiff’s purported impairment, a reasonable jury could conclude these statements were made with a reckless or wanton disregard for the truth ” (Sheppard, 2016 WL , at p. *10.)

60. Implied Contract for Public Employers?
Courts have generally rejected breach of express and implied contract claims brought by public employees.
But courts have held that contractual rights in a public employment context “can be implied under certain circumstances from a county ordinance or resolution.” (Retired Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1194.)
Practice Tip: Public employers should make sure that administering a drug or alcohol test does not violate any policy that was adopted by local ordinance or resolution, including approval of MOUs.

61. Defamation?
Public employers imposing discipline on employees that test positive for cannabis use should be very careful when characterizing the basis for such discipline.
Given current technology limits with cannabis testing, if the only evidence that an employer has of impairment is a positive cannabis drug test, take care not to assert that the employee was impaired while on duty

62. Limits on Drug & Alcohol Testing: Duty to Bargain
November 21, 2019

63. Duty to Bargain
The Meyers Milias Brown Act (“MMBA”) requires employers to bargain with employee representatives about matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment . . .”
(Gov. Code, §§ 3504, , 3505.)

64. Duty to Bargain – Drug-Testing?
Courts have interpreted the MMBA to require bargaining over the terms of mandatory drug testing of employees.
Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 631, citing Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 530

65. Duty to Bargain – Holliday v. City of Modesto
In Holliday v. City of Modesto (1991) 229 Cal.App.3d 528, 540, the Court of Appeal held that the MMBA generally requires public employers to meet and confer before adopting a drug testing program.
“The interests and concerns of any employee subjected to a mandatory drug-testing policy are obvious.”
“Many serious and legitimate questions arise whenever a drug-testing program is considered, including”:
under what conditions is testing appropriate?
what type of testing is appropriate?
who conducts the tests?
what safeguards are utilized for laboratory integrity and chain of custody of test samples?
what re-testing procedures are available?

66. Duty to Bargain – Holliday v. City of Modesto (II)
“Good faith pursuit of the bargaining process will require attention to these and other pertinent issues and may result in a policy serving the interests of both employer and employees.”
(Holliday, 229 Cal.App.3d at p. 540.)

67. Duty to Bargain – Public Safety Exception?
The Court of Appeal has held that there is no duty to bargain over a peace officer use of force policy that was “primarily a matter of public safety.”
(San Jose Peace Officers’ Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 947.)
Holliday left open applying this rationale to drug or alcohol testing of firefighters:
“[B]ecause of the absence of evidence showing that respondents’ primary purpose was the protection of the public safety, we cannot apply San Jose in this case.” (Holliday, 229 Cal.App.3d at p. 539, emphasis added.)

68. Duty to Bargain – Public Safety Exception? (II)
The Attorney General’s office has relied on San Jose and Holliday to conclude that establishing a policy “respecting individual suspicion-based drug testing of deputy district attorneys would not be the subject of mandatory collective bargaining” because:
“the policy in question, while it impinges indirectly upon a condition of employment, relates primarily to a matter of public safety.”
(80 Ops. Cal. Atty. Gen. 354 (Dec. 23, 1997).)

69. Duty to Bargain – Public Safety Exception? (III)
Practice Tip: Even where a public employer can show that its decision to require testing is primarily motivated by public safety concerns, to avoid challenge a public employer should negotiate other aspects of a policy requiring drug and alcohol testing, such as the testing procedure and use of results.

70. Key Drug & Alcohol Testing Policy Takeaways
November 21, 2019

71. Key Policy Takeaways
Suspicionless drug/alcohol testing must be confined to employees in safety- or security-sensitive roles
To be safe, follow the same rule for job applicants
For other types of employees (and applicants), establish a system to adequately document facts that may give rise to an inference of on-duty impairment and justify “reasonable individualized suspicion”
When collecting urine samples:
Do rely on trained medical staff
Do administer at a medical facility if possible
Do collect the sample immediately after it has been produced in a private setting
Do not use visual monitoring of urine collection

72. Key Policy Takeaways (II)
Beware that alcohol testing may implicate the ADA
Do not ask about prescriptions unless and until an employee or applicant tests positive
Consider whether there is a local ordinance or resolution creating implied contract rights regarding drug testing
Do not rely on a positive cannabis test alone to discipline an employee for being impaired while on duty
Watch out for developments in FEHA regarding medical cannabis
Consider whether a local law prohibits testing
When contemplating a change in drug/alcohol testing policy, be mindful of your duty to bargain under the MMBA

73. Thank you. Additional questions. Teresa L
Thank you! Additional questions? Teresa L. Stricker, Partner Ryan McGinley-Stempel, Sr. Associate
November 21, 2019