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Drug Testing of Employees
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. May 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 is generally legal for employers to conduct drug tests, you should proceed very carefully, because this type of testing can infringe on an employee’s common law (and for public sector employees, constitutional) privacy rights.
 
So how may 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 may 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 fairly and 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 conclusions, rumors or gossip) which gave you reasonable suspicion of an employee’s drug use.
 
You may 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 or others in safety-sensitive positions than for your clerical staff. More rigorous standards apply to employers who are federal contractors when those contracts require the employer to have and to enforce a zero tolerance drug-free workplace policy and to employers whose employees are subject to Department of Transportation regulations on testing.
 
Obviously, it would be discriminatory to drug test only your Asian employees, or only your female employees, or only your employees under 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 should 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. By giving employees reasonable advance notice of your new policy, you are fairly allowing them to conform their (typically) off-duty behavior to meet these new expectations.
 
If you do drug test employees in a proper manner, you may 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. This is so despite recent legislation in Oregon that allows for the private, adult use of marijuana, and not-so-recent legislation that allows for the medicinal use of marijuana.  Marijuana remains illegal under the federal Controlled Substances Act, listed as a Schedule 1 substance, along with heroin, LSD and PCP. This schedule is reserved for drugs that have a high potential for abuse and no known medicinal purpose. Note that it would be fair to let your employees know that just because it is “legal” under state law, it is not under federal law, and employees are not allowed to have it in their systems. Under current testing methods, it is difficult and expensive to test for impairment. It is relatively inexpensive and reliable to test for the presence of an inactive metabolite in marijuana. Therefore, while many employers would prefer to limit their drug policies to prohibit impairment on the job rather than responsible off-duty use, such policies are extremely difficult to enforce.   
 
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 may 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? Have we properly documented the basis for our suspicions?
 
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.
 
Revised June 2017 
DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
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PORTLAND, OR  97232
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