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Drug-Free Workplace Policy and Program Template

California Drug Testing Laws and Regulations

State: California
Statute of Order: Exec. Order D-58-86, Labor Code §1025 et seq.
Covered Employers: State agencies.
Applicant Testing: Testing authorized of applicants to state agency positions of "sensitivity" if testing is job related.
Employee Testing: Testing authorized of state employees in positions of "sensitivity." Employees who test positive may be referred for treatment or may be suspended or removed from job. Private sector and public employers of 25 or more must "reasonably accommodate" employees who want to enter drug treatment programs.
Conditions & Methods: In state agencies, advance notification of employee or applicant, documentation showing chain of custody, and confirming test in case of positive findings.
Important Bulletpoints:
  • There are laws in California that permit the use of marijuana for limited medical use only.
  • Employers with State agency awarded contracts and grants are required to certify that they provide a drug-free awareness program and that they have a published policy on controlled substances distributed to their employees. The Department of General Services is tasked with blacklisting contractors who fails to comply with these provisions. However, primary State grantees or contractors are not required to make sure that their subcontractors also have drug-free workplaces.
  • Testing for controlled substances for public transportation drivers is mandatory.
  • With reference to related California statutes, any pre-employment or continuing employment related medical testing costs or fees are at the sole expense of the employer.
  • As per the Department of Health’s enforcement of existing state laboratory licensing laws, on-site testing is prohibited. Drug testing may therefore be administered only by a licensed physician and only at certified testing laboratories.
  • Use of controlled substances may cause a person to be ineligible for workers’ compensation and unemployment benefits.
  • Employers with 25 or more employees are required to provide “reasonable accommodation” to employees who voluntarily submit to drug or alcohol rehabilitation programs provided no undue hardship is imposed on the employer.
  • Medical Marijuana Law:

    California legalized medical marijuana in 1996 via Proposition 215 or The Compassionate Use Act of 1996 or The Medical Marijuana Regulation and Safety Act (MMRSA). This act removed the state-level criminal penalties on the cultivation, use and possession of marijuana by qualified patients who have a recommendation (oral or written) from their physician. Patients and their caregivers may possess up to 8 ounces of dried marijuana and/or 6 mature (or 12 immature marijuana plants.

    Qualifying Medical Conditions

    • Anxiety

    • Arthritis

    • Cancer

    • Chemotherapy Side Effects

    • Chronic Pain

    • Fibromyalgia

    • Glaucoma

    • HIV-AIDS

    • Migraine Headaches

    • Multiple Sclerosis

    • Radiation Therapy Side Effects

    • Any other chronic or persistent medical symptom that substantially limits the ability of the person to conduct one or more major life activities

    Recreational Marijuana Law

    On November 8, 2016 California passed Proposition 64 - The (Control Regulate & Tax) Adult Use of Marijuana Act via a 56.03% to 43.97% vote. This proposition immediately becomes a law, decriminalizing the use and possession of marijuana. It allows adults at least 21 years of age to possess and grow for their recreational use specified amounts of the cannabis plant. Proposition 64 does not alter or affect Proposition 215 or The Compassionate Use Act of 1996 or The Medical Marijuana Regulation and Safety Act (MMRSA).  

    While the use and cultivation of recreational marijuana has been decriminalized as of November 9, 2016, its sale and subsequent taxation will not take effect until January 1, 2018.  

    Limitations  

    • While Prop 64 now permits adults at least 21 years of age to smoke marijuana in private homes or at places licensed for on-site marijuana consumption:  

    Smoking marijuana while driving a vehicle remains illegal.

    • Smoking marijuana remains illegal wherever it is also illegal to smoke tobacco.

    • Smoking marijuana in public places remains illegal.

     

    • While it is now legal to possess up to 8 grams of concentrated marijuana or 28.5 grams of marijuana:  

    Possession of marijuana on school grounds, in day care centers or in youth centers while there are children present remains illegal.

     

    • It is now permitted to grow up to 6 plants in a private home provided the area is kept locked and not visible from a public place.  

    • While businesses can acquire a local and/or state license to sell marijuana for recreational purposes, they are not allowed to do business within 600 feet of any school, day care center or youth center.

    Effects on Workplace Drug Testing

    Lifted verbatim from the full text of Prop 64, below is a summary of provisions relevant to workplace drug testing.

    • Under Section 3 - Purpose and Intent, it is stated that "The purpose of the Adult Use of Marijuana Act is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana. It is the intent of the People in enacting this Act to accomplish the following":  

    Sub-section (r) - Allow public and private employers to enact and enforce workplace policies pertaining to marijuana.  

    Employers who do not already have a drug testing policy in place are completely free to build one that explicitly addresses employee marijuana use while at work or reporting for work while under the influence. Existing drug free workplace policies remain in effect in the interest of maintaining employee performance, safety and productivity.  

    • Additional sections are added to the California Health and Safety Code, specifically Sections 11362.1 through 11362.45. It is stated under Section 11362.45(f) that - "Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: The 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 marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.  

    Prop 64 does not interfere with the rights of employers both public and private, to keep their workplaces drug and alcohol free. They are under no obligation to allow employees to possess, use, display, transfer, transport, sell or grow marijuana in the workplace.

    Sources:

    https://www.marijuanadoctors.com/medical-marijuana/CA/qualification

    https://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016)  

    https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0103%20%28Marijuana%29_1.pdf

    Applicability: Law applies to physicians, patients and caregivers
    Quantity Allowed: 8oz. or less dried; or 6 or less mature; or 12 or less immature plants
    How Obtained: Growing permitted – otherwise not specified
    Liability Protections: Physicians: protected from criminal prosecution when recommending Marijuana for medical use Patients and Caregivers: protected from arrest for possession, transportation, delivery or cultivation if patient or caregiver has a valid I.D. (NOTE: I.D. card is voluntary).
    Statutory Requirements for Authorized Use: No Registry Card required. I.D. Cards issued by State Department of Health. I.D. Cards are voluntary and must be renewed annually.
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    Material on these pages (state drug testing laws and drug testing regulations) is provided for informational purposes only and does not constitute legal, medical or technical advice. This drug testing related information is not intended as substitute for obtaining legal advice from attorney, or a relevant medical technical or financial professional. TestCountry is not a law firm or a legal agency, therefore cannot guarantee the accuracy of this content. Drug testing laws are collected from legal and/or state sources, and it may or may not be valid by the time you are viewing it. Any views or opinions expressed are solely those of the author and do not necessarily represent those of Confirm Biosciences Inc. DBA TestCountry.

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