Q. Andrew is a member of my office staff whose job performance recently has not been up to par. Based on rumors I´ve heard from my other employees, I suspect that Andrew may be using illegal drugs. Can I require him to submit to a drug screen? What are the rules for drug testing employees?
A. The Oregon civil rights laws don´t specifically address drug testing of employees. But the absence of specific statutes in this area doesn´t mean that employers have carte blanche to conduct drug tests in every situation. In fact, while it´s generally legal for employers to conduct drug tests, you should proceed very carefully, because this type of testing can infringe on an employee´s constitutional privacy rights.
So how can you conduct drug tests without landing your company on the wrong end of a lawsuit? Here are a few tips:
Have a clear policy. Your first step is to implement a clear written policy on drug testing and to fully explain the policy to all your employees. Work with your employment law attorney and a qualified laboratory testing service to draft a legal policy that advises employees they could be subject to testing.
Articulate your standard for testing. Advise employees how they can be selected for testing. Although some employers may choose to test randomly, many employment attorneys suggest that you limit testing to situations where there is "cause" (when the employer has reasonable suspicion of drug use), or when an employee is involved in a workplace incident or accident.
Apply your policy consistently. To avoid charges of discrimination or wrongful discharge, enforce your drug testing policy in a fair and consistent manner. If you test employees randomly, be certain you can document that your selection methods are truly random. If you test employees "for cause," be certain you can articulate the facts (not merely rumors or gossip) which gave you reasonable suspicion of an employee´s drug use.
You can set different drug testing standards for different classifications of workers, as long as your standards are based on business reasons. For example, you might decide to set higher drug testing standards for your delivery drivers than for your clerical staff.
Obviously, it would be discriminatory to drug test only your Asian employees, or only your female employees, or only your employees over 40 years old. Likewise, you should realize that employees who suffer on-the-job injuries fall into a protected class, and thus it would be discriminatory to drug test only employees who get hurt at work. So if you test employees based on their involvement in a work-related accident, you ought to test all employees involved, regardless of whether they were injured.
Provide advance notice. It´s typically recommended that you provide your current employees with at least 30 days advance notice before starting a new drug-testing program. Without such notice, your employees have a "reasonable expectation of privacy," an expectation that they´ll be free from drug testing in the workplace. Spring a surprise drug test on an employee without a drug testing policy in place, and you may get a surprise of your own -- in the form of a lawsuit.
If you do drug test employees in a proper manner, you can discipline or terminate employees who screen positive for current use of illegal drugs, because such individuals are not protected by the ADA or Oregon disability laws.
In your situation with Andrew, ask yourself the following questions: Did we previously advise Andrew that our company has a drug testing policy? Did we explain in the policy that employees can be tested "for cause?" Did we give sufficient advance notice of the policy? Do we really have reasonable suspicion to believe that Andrew is using illegal drugs?
If you answered "no" to any of these questions, watch out! Instead of requiring a drug test, you´ll be much safer addressing Andrew´s specific performance deficiencies by following your regular disciplinary policies. If Andrew is arriving late for work, acting in a bizarre or inappropriate manner, or simply not completing his job duties on time, focus on those issues and apply your existing discipline rules as you would with other employees.
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