Pocket Guide to Drug and Alcohol Policies in the Public Sector (1st ed., 2019)


By Steven P. Shaw and Burke A. Dunphy

1st edition, 2019

1056 in stock

SKU: DAP019 Category:


In this rapidly evolving area of concern, California public employers must provide a drug-free workplace while avoiding overbroad policies that discriminate against individuals with disabilities and unduly invade privacy.

This topic is increasingly relevant in light of the recent legislation of marijuana in California.

The CPER guide provides best practices for employers while safeguarding employees’ privacy rights and legitimate medical needs.

The authors address common issues and pitfalls in workplace drug and alcohol policies as well as application of relevant laws and statutes.

Chapters cover prescription drugs in the workplace; medical and recreational marijuana; how to create effective policies; drug and alcohol testing; granting leave; employee assistance programs; state and federal laws and statutes; and more.

As always, the CPER format is readable and convenient to reference, with relevant laws and statutes, case law, glossary, table of cases, and index.


Table of Contents
I. Introduction 1
II. Drug Use in the Workplace 8
    A. Relevant Laws/Statutes 10
        1. FEHA (Gov. Code sections 12900-12996) 10
        2. ADA (42 U.S.C. sections 1210, et seq.) 11
            (a) Duty to engage in the interactive process, provide reasonable accommodations to affected employees and avoid discrimination against individuals with disabilities 11
            (b) Enforcement efforts by the Equal Opportunity Employment Commission (EEOC) 19
    B. Best Practices on Addressing Prescription Drug Use in the Workplace 19
        1. Proper action where an employee is suspected of being under the influence of illegal drugs or alcohol at work 19
            (a) Documentation 19
            (b) Disability-related inquiries, medical exams, and drug and alcohol testing 22
        3. Employers should establish a clear policy indicating when drug or alcohol testing will be required 28
        4. Employers should freely grant leave for employees to attend rehabilitation programs 29
        5. Employers should make clear that medical marijuana use at work violates their drug-free workplace policies 31
        6. Employers should be aware of different drug and alcohol testing requirements that apply to transportation employers or other “safety-sensitive” work environments 32
        Employee Assistance Programs (EAPs) 33
III. Impact of California Marijuana Statutes on Employer Drug Policies 34
    A. Medical Marijuana 34
    B. Recreational Marijuana 37
        1. Legislative efforts related to reasonable accommodation 38
        2. Practical impacts of California’s marijuana laws in the employment context 39
            (a) Imprecise testing 39
            (b) Consistency in application of drug-free workplace policies 39
            (c) Potential for disability discrimination claims 40
            (d) Impacts of public agency policies related to marijuana sales and revenues 40
IV. Alcohol Use in the Workplace 41
V. Drug and Alcohol Testing 43
    A. Drug and Alcohol Testing Rules for Employees Subject to Federal Department of Transportation Regulations 44
        1. Pre-hire testing 48
        2. Testing of current employees 49
            (a) Post-accident testing 49
            (b) Random testing 50
            (c) Reasonable suspicion testing 51
            (d) Return-to-duty testing 52
    B. Drug and Alcohol Testing Rules for Employees Not Subject to Federal Department of Transportation Regulations 54
        1. Pre-hire testing 54
            (a) Testing for drugs 54
            (b) Testing for alcohol 56
        2. Testing of current employees 57
            (a) Post-accident testing 57
            (b) Random testing 58
            (c) Reasonable suspicion testing 58
            (d) Return-to-duty testing 59
VI. Responses to Positive Tests for Illegal Drugs and/or Alcohol 60
    A. Applicants 61
    B. Current Employees 63
        1. Rehabilitation 63
        2. Employee Assistance Programs 64
        3. Last Chance Agreement 65
        4. Termination/Discipline 67
VII. Case Law 75
    A. Government Drug Testing of Its Employees 75
    B. Common Law Tort Claims 76
    C. Pre-Employment Testing 77
    D. Testing of Current Employees 77
    E. Random Drug and Alcohol Testing Involving Employees That Serve in Safety Sensitive Positions 78
    F. Suspicionless/Random Testing 79
    G. California Alcohol and Drug Rehabilitation Act (Applicable to Private Sector Employers Only) 79
    H. Americans with Disabilities Act (ADA) 80
    I. Fair Employment and Housing Act (FEHA) 81
    J. Drug Testing and the National Labor Relations Board (NLRB) 81
VIII. Statutes 82
    A. Federal Laws and Statutes 82
        1. United States Constitution, Amendment IV 82
        2. Drug-Free Workplace Act of 1988 (41 U.S.C. sections 8101-8106) 82
        3. Omnibus Transportation Employee Testing Act (49 U.S.C. sections 31301 and 31306) 89
        4. Department of Transportation Procedures for Transportation Workplace Drug and Alcohol Testing Programs (49 C.F.R. Part 40.1-40.413) 96
        5. Americans with Disabilities Act (42 U.S.C. sections 12101-12213) 102
        6. National Labor Relations Act (29 U.S.C. sections 141-187) 114
    B. California Laws and Statutes 123
        1. California Constitution 123
        2. California Alcohol and Drug Rehabilitation Act (California Labor Code sections 1025- 1028) 124
        3. California Drug-Free Workplace Act of 1990 (Gov. Code sections 8350-8357 125
        4. Compassionate Use Act (Health and Safety Code section 11362.5) 127
        5. Adult Use of Marijuana Act (Health and Safety Code sections 11362.1 and 11362.45(f).) 128
        6. Fair Employment and Housing Act (California Gov. Code sections 12900-12996) 129
IX. Glossary 146
X. Table of Cases 151
XI. Index 154

Additional information

Dimensions 10 × 6 × .5 in