An employee shows up to work and appears to be intoxicated. You want to send them for drug testing to see if your assumption is correct and terminate them if it is. Is this legal?
In Oregon you should proceed cautiously and if you don’t have a clear drug and alcohol policy that you enforce uniformly then you should not proceed at all. Testing without a policy can infringe on an employee’s common law privacy rights.
How can you conduct drug testing without ending up in a lawsuit?
- Have a clear policy. Implement a clear written policy on drug and alcohol testing and explain the policy to all employees.
- Be clear on your standards for testing employees. Explain to all employees how they may be selected for testing. Be clear that there will be testing in situations where there is cause or when an employee is involved in a workplace accident.
- Apply the policy consistently to all employees. To avoid discrimination or wrongful termination, apply the policy to all employees equally. If you are testing for cause make sure you clearly lay out the facts (no rumors) and that you enforce this with all employees in the same situation.
If you currently do not have a written drug and alcohol policy it is recommended that you give 30 day notice to all employees about the new policy before you start enforcing it. If you follow your written policy and handle drug and alcohol testing in the proper manner, you may discipline or terminate employees you screen positive for illegal drugs or alcohol. In regards to marijuana it is fair to let your employees know that it is legal at the state level but is not under federal law, and employees are not allowed to have it in their systems.
If you do not have a policy and suspect someone is under the influence of drugs or alcohol, stop! Instead of sending an employee for testing, it will be safer to address performance issues following your regular disciplinary policy.
If you have any questions or would like help adding a drug and alcohol policy to your employee manual, please contact our office.