fired for failing drug test

The requirements of your job can include so much more than your daily tasks.

You might have to complete training sessions, attend performance reviews, or submit to a drug test.

What happens if you fail a drug test? Can you get fired for failing a drug test?

The answer to this question is maybe, and you can protect yourself by understanding your rights.

At Workplace Rights Law Group, we are best equipped to face off against unscrupulous employers and protect your interests.

Let’s take a look at your rights regarding drug testing in the workplace. Contact us today to get started.

Employers Have Limited Rights to Require Employee Drug Testing

Section 1025 of California’s Labor Code allows employers to fire or refuse to hire employees because of their drug use. However, this power is not absolute.

Employers’ drug testing methods cannot violate the state constitution or certain statutes and discrimination laws.

Your Constitutional Right to Privacy

Article 1, Section 1 of the California Constitution confirms that each citizen has an inalienable right to pursue and obtain privacy.

Requiring employee drug testing can violate your privacy rights unless an employer has certain needs and follows certain protocols.

In the 1990 case Semore v. Pool, 217 Cal.App.3d 1087, an employer terminated an employee for refusing to take an eye test that could uncover drug use.

The Semore court stated that a testing employer’s interests must outweigh an employee’s right to privacy before drug testing and related termination could be legal.

When balancing these rights and interests, a court might look at the following factors:

  • The nature of the employer’s business,
  • The nature of the test,
  • The testing equipment used,
  • The process for administering the test,
  • The nature of the employee’s job, and
  • The reliability of the test.

The employer in Semore was a chemical business. The court suggested that the employer might have a valid interest in testing its chemical handlers but not its gardeners.

Your Rights to a Workplace Free from Discrimination

Under certain circumstances, employee drug testing and related terminations can be unlawful workplace discrimination.

Your employer cannot treat you differently from other employees because of your:

  • Age,
  • Color,
  • Disability,
  • Gender,
  • Nationality,
  • Race,
  • Religion,
  • Sex, or
  • Sexual Orientation.

The characteristics above are protected characteristics under both state and federal anti-discrimination laws.

If you notice your employer is only drug testing and firing employees with the same protected characteristics as you, you could have a right to sue for discrimination.

Also, Section 1025 of California’s Labor Code requires employers to reasonably accommodate employees participating in drug rehabilitation programs.

However, an employer is not prohibited from taking action, including termination, against an employee who, because of their current use of alcohol or drugs, is unable to perform their duties, or cannot perform them in a manner that would not endanger the health and safety of others.  

Although medical marijuana is legal in California, an employer can deny you a job if medical marijuana shows up on your drug test.

The Supreme Court of California decided that this is not a form of disability-based discrimination.

You Have a Right to Sue for Wrongful Termination

If your employer did not have a legal right to fire you for failing or refusing a drug test, you have the right to sue.

You can file a complaint with the U.S. Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing.

You can also file a lawsuit in civil court. If your complaint or suit is successful, you can receive back pay, financial damages, job reinstatement, and possibly punitive damages. 

Whether your employer can legally fire you for failing a drug test depends on many facts specific to your case.

Do not assume that you lack the right to sue an employer for wrongful termination after failing or refusing a drug test.

You need to speak to an experienced attorney, and you need to speak fast.

Contact an Employment Law Attorney Today

Our experienced attorneys at the Workplace Rights Law Group can guide you in the right direction and protect you from unlawful termination.

We also know how to put your case in the best light to increase your chances of success. We have over 75 years of experience. 

Furthermore, we know how to deal with unscrupulous employers and the employees they harm. Do not be afraid to ask for help.

Give us a call at 1-818-844-5200 or contact us online for a free case review.


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