Principles for Public Safety Employment

drug testing program violated the Fourth Amendment of the U.S. Constitution prohibiting unreasonable searches. The Ninth Circuit Court of Appeals found that the City’s drug and alcohol testing policy was unconstitutional to the extent it applied to positions that did not implicate public safety. As the City could not articulate a special need to give a suspicionless test for the library page position, the City’s drug and alcohol testing policy was unconstitutional as applied to this job applicant.

Suspicionless pre-employment drug testing of public safety employees, such as law enforcement officers and firefighters, will likely withstand constitutional challenge because agencies could readily articulate a special need to ensure that public safety employees are not impaired in the performance of their duties. LCW Practice Advisor Effective testing for illegal drugs requires an applicant to list the prescription medications they are taking [which may inadvertently trigger a false positive]. However, inquiring into an applicant’s prescription drug use is

considered a medical examination and prohibited before a conditional offer is made. We therefore recommend not requiring a drug test until after the conditional offer, in order to do just one thorough and complete medical examination.

c. Medical Marijuana The California Supreme Court has held that an employer is not required under FEHA to accommodate use of medical marijuana pursuant to a doctor’s recommendation under the Compassionate Use Act. In Ross v. RagingWire Tele . 59 the court rejected the plaintiff’s argument that the Compassionate Use Act created a broad right to marijuana use, enforceable against employers. The court held that the Compassionate Use Act only provides a defense to certain state criminal offenses but does not change the employer-employee relationship. An employer can terminate an employee for medical marijuana use without violating FEHA or committing the tort of wrongful termination in violation of public policy. d. Psychological Tests Certain psychological tests are considered “medical examinations,” and therefore may not be administered until a conditional offer is made. 60 For example, a psychological test designed to identify a mental disorder or impairment would be considered a medical examination. Since mental impairments are considered a disability under the ADA and the FEHA, tests for psychological disorders may not be conducted until after a conditional job offer has been made. 61 But a psychological test that measures personality traits such as honesty, preferences, and habits are generally not considered medical examinations, 62 and theoretically could be administered before a conditional offer of employment is made. e. Polygraph Examinations Are Not Medical Examinations Polygraph examinations are not medical examinations, although as noted herein, they are generally prohibited except for peace officer applicants . 63 However, polygraph examinations

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