Workplace Drug Policies: Is Yours Up to Snuff?
by Eric Taylor, Attorney, EagerLaw PC
If you’re an employer, you’ve probably thought about implementing a workplace drug and alcohol policy but may not be sure what you can and cannot require of employees. Laws surrounding marijuana in Oregon continue to evolve, leaving you and many other Oregon employers with even more questions. While all employers should strongly consider their goals and individual circumstances before creating a policy, fortunately, some basic guidelines do exist. In this update, I’ll shed some light on those guidelines to help you clarify your thinking around your workplace drug and alcohol use policy.
Make Your Policy Clear and Use Objective Factors for Testing
You may be surprised to know that in Oregon no law specifically prescribes what a drug and alcohol policy must contain. Even so, there can be consequences for poorly drafted policies. In looking for some guidance employers can turn to the Oregon Employment Department, which prescribes guidelines for drug and alcohol policies in regard to determining unemployment benefits. It boils down to this: In determining eligibility for unemployment benefits, the Employment Department must find that the policy applied was reasonable.
In general, to be considered reasonable, your workplace drug and alcohol policy must be in writing and prohibit the use, sale, possession or effects of drugs in the workplace, and you must consistently follow your policy. The policy should also outline the disciplinary actions that may be taken if an employee violates the policy. As an employer, if you want to test an employee for drugs or alcohol, you must either have probable cause for the test or conduct random testing. The definition of “probable cause” becomes very important, because any testing conducted without it would likely be considered unreasonable.
Probable cause generally requires that an employer have a reasonable basis to suspect drugs or alcohol in the workplace, which includes observations such as bizarre behavior, changes in productivity, repeated tardiness or absences, or behavior which causes an on-the-job injury or substantial damage to property. An employer may also base this determination on credible information about the effects of drugs and alcohol in the workplace.
The Oregon Employment Department’s requirements do an excellent job of laying out the basic framework of a drug and alcohol policy. It provides a good starting place for your policy and gives it some teeth by providing a basis in reasoned rulemaking surrounding these issues. You will need to decide where to go from here based on your particular circumstances and goals, but this framework provides a good start.
Give Employees Advance Notice and Confirm in Writing
Before implementing any policy, it’s advised that you give the policy to employees 30 days prior to the date you begin implementing and applying the policy. We also suggest requiring employees to confirm in writing the date they received and reviewed the policy. This is designed to shoot down any objections from employees that they didn’t know about the policy or claims that it was unreasonable to immediately apply the policy.
Apply the Policy Equally
In implementing your workplace drug and alcohol policy, you’ll need to be sure that you apply it consistently and uniformly to all employees. Employment discrimination claims are among the biggest concerns for any employer. Anti-discrimination statutes provide some of the strongest protections to employees and are often the basis for lawsuits. So if, for example, the application of your drug and alcohol policy resulted in the exclusive drug testing of Hispanic pregnant women, the affected employees would have a good basis to claim that your policy had a disparate impact on them. Such a claim would be extremely costly for your company and could easily have been avoided by simply applying the policy equally to all employees across the board.
Take Pause if an Employee is or may be Disabled
Be on the lookout for issues that may arise with disabled employees, including employees who may be alcoholics or those taking prescription drugs. The Americans with Disabilities Act (“ADA”) provides protections to employees with disabilities and requires employers to make reasonable accommodations to those employees. If an employee may be disabled, which can include being an alcoholic, you as an employer have certain duties under the ADA. If you simply fired the person for not complying with the drug and alcohol policy, then you would likely forego your obligations under the ADA and be liable under that statute. The take-away here is this: If you think an employee may be disabled, tread lightly in the application of a drug and alcohol policy and seek outside counsel before proceeding.
Termination for Marijuana Use or Possession
Currently, if an employee is subjected to a drug test pursuant to a drug and alcohol policy, the employer can take action under the policy if marijuana is detected. However, one of the biggest issues here is the limitation of testing for marijuana. Most tests can tell you whether or not it’s present, but they can’t give a very good idea of when the drug was taken, or if the person was impaired by it in the workplace. Though as the employer you can take action if there is any amount present, it’s really your judgment call in how you draft and implement your drug and alcohol policy. Many employers are only interested in whether the employee was impaired at work, and if that is the case for you, you’ll want to carefully draft the policy to reflect this.
You may be thinking, but what about medical marijuana? Isn’t that like taking a prescription? That’s a great question, and luckily the Oregon Supreme Court has examined it. In the case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Instries, the court looked to see if disability statutes provided protection for employees taking medical marijuana. Disability statues do provide protections for employees taking prescription drugs, and thus the court looked at how medical marijuana fit in. The issue came down to the tension between Oregon’s legalization of the drug for medical purposes and the criminalization of the drug federally. The court ultimately found that the federal law preempted the state law and that users of medical marijuana do not receive protection under the disability statutes. With this, medical marijuana users do not have protection if terminated under a reasonable drug and alcohol policy. This would almost certainly change if the federal law is altered, but until then Emerald Steel tells us that there’s no protection.
There are numerous other considerations that may arise in drafting your drug and alcohol policy that we simply do not have time to cover here. Each employer’s stance on drugs and alcohol is different, and what works for one business often won’t work for another. If you are considering revising or implementing a drug and alcohol policy, we suggest that you contact an attorney to receive advice on your specific circumstances in order to have an effective drug and alcohol policy. We at EagerLaw PC are of course happy to help.
Eric Taylor is a business attorney with EagerLaw PC. He regularly represents business in a wide range of issues including formation, dissolution, real estate transactions, and employment law issues. Call him at (541) 323-5851. Stay up to date on all Bend business matters with EagerLaw PC on Facebook.