Can My California Employer Fire Me For Refusing A Drug Test?

Can My California Employer Fire Me For Refusing To Take A Drug Test?

Drug testing remains an important issue for California employees. One question that frequently comes up is whether an employee can sue for wrongful termination if he or she is fired for refusing to take drug test.

Getting Fired for Refusing to Take a Drug Test May Be Grounds for a Wrongful Termination Lawsuit

Employees have a right to privacy protected by the California Constitution, and generally speaking, the law prohibits employers from requiring a drug test once employment has begun. In other words, while employers can require a drug screen as part of the employment application process, once work begins, usually they cannot. This means that unless the employer has a very good reason for testing, a drug test that occurs after employment begins is likely illegal because it invades the employee’s right to privacy. Random and suspicionless tests are generally unlawful.

The question then becomes, if the employee refuses the test and is fired for refusing, can he or she then sue for wrongful termination? While the law is not perfectly clear, the answer is probably yes.

There are two separate views on this question within the law. The first and probably “correct” one is that the right to privacy is a fundamental public policy protecting all employees and that when an employer fires an employee for refusing a drug test that would have invaded the employee’s right to privacy, the employee can sue for wrongful termination. See Semore v. Pool (1990) 217 Cal.App.3d 1087.

The second and likely “incorrect” view is that an employee who refuses a drug test cannot sue for wrongful termination because the right to privacy is an individual right, not a public one and therefore cannot be the basis of a wrongful termination claim. See Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1.

Have You Been Wrongfully Terminated?

If you believe you are the victim of wrongful termination or have question about your rights as a California employee, contact our office today at 949-528-4220. We represent employees in discrimination, retaliation, wage and hour and whistleblower matters in state and federal courts throughout California.