August 15 Tip of the Week
“Drug Testing: Compensable?”
We have addressed the issue of drug testing, when it is appropriate and when it can create problems for employers. Safety sensitive positions, legal recreational drug use, employee privacy, and other issues are all factors that an employer must consider when deciding whether to engage in drug testing of its employees and/or prospective employees. Once an employer has resolved these issues and has made the determination to implement drug testing in the workplace, the employer must develop a comprehensive drug testing policy that specifically sets forth the rules and process related to drug testing. This includes, among other things, when and how drug testing will be conducted, the appeal rights of an employee to contest a positive drug test result, and who will conduct those tests.
An important consideration for employers when developing a drug testing policy is the issue of the time needed to take these tests and the expenses incurred in having the drug test administered to employees and applicants for employment. The question often arises regarding who pays for the drug test itself and, more importantly, should or must an individual be compensated when they are required to submit to a drug test? A recent decision in California, typically a pro-employee state, should provide some comfort to employers who engage in pre-employment drug testing. The Ninth Circuit Court of Appeals decided Johnson v. WinCo Foods LLC [37 F.4th 604 (9th Cir. 2022], a class action lawsuit brought by the plaintiff in an effort to require the employer, a large grocery store chain, to pay him for the time spent in completing the pre-employment drug testing requirement imposed on him as a successful applicant in the hiring process. In other words, the plaintiff argued that, because the drug test was administered under the employer’s control and was a condition subsequent to his offer of employment, he should be paid for the travel expenses and time spent to undergo the drug test. The court rejected the plaintiff’s argument, holding that, despite the fact that the plaintiff had been made a conditional offer of employment, he was not yet an employee and was not entitled to be compensated for the time and effort required to complete the mandatory drug testing requirement.
In reaching its decision, the court stated that requiring an applicant, even after a conditional job offer, to submit to a drug test is similar to requiring an applicant to complete the other stages of an employment interview. The court, in rejecting the argument raised by the plaintiff that the employer was exercising control over him and other applicants like him, stated that the mere fact that an employer controls all aspects of the hiring process does not establish an employment relationship between the employer and the applicant. In reaching this conclusion, the court stated “[d]rug testing, like an interview or preemployment physical examination, is an activity to secure a position, not a requirement for those already employed.” 37 F. 4th 604, 9th Cir. 2022, p. 8. The court further determined that a job offer conditioned on the completion of a drug test did not establish an employment relationship between the parties: “the class members did not become employees until they satisfied the condition of passing the preemployment drug test.” Id., at p. 12.
This decision is good news for employers as it reinforces the nature of a conditional job offer and ensures that employers are not obligated to compensate job applicants for the time spent in seeking a position with an employer. This decision, however, does not relieve employers of the obligation to pay current employees for the time spent in submitting to a random or probable cause drug test. Any drug testing policy should include a distinction between the treatment of pre-employment drug tests and the drug testing requirements imposed on existing employees. We can assist you at myHRcounsel in developing a legally compliant and comprehensive drug testing policy. While stand alone policies can be developed for employers, myHRcounsel encourages our clients to avail themselves of our comprehensive handbook service. Using our handbook process, employers will be given a best practice handbook that is legally compliant in all the states where the employer conducts business.