Implement policy before drug testing.

Byline: ON THE JOB by Bureau of Labor and Industries For The Register-Guard

Question: Mary Lou has always been one of our more animated employees; often sharing funny stories and horsing around a bit with others in the workplace. But for the past several days, she's been acting a little over-the-top, even for her. She's been talking boisterously and incessantly and bothering other employees, even after they tell her they're too busy to chat. She also has been leaving her desk to go to the ladies' room several times more than usual during the workday.

In the past, her performance has been consistently impeccable, despite her spirited personality. However, along with her recent "amped-up" behavior, her performance has tanked. There have been rumors that Mary Lou is using illegal drugs, and though I suspect it might be true, I'm not sure how to discipline her without more proof that drug use is the problem.

I'd like to require Mary Lou to take a drug test. May I do that?

Answer: Oregon civil rights laws don't specifically address the issue of drug testing 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 private-sector employers to conduct drug tests, you should proceed very carefully, because this type of testing can intrude 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 when the employer has a 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 your selection methods in order to show that they are truly random. If you test employees based on a reasonable suspicion, be certain you can articulate the facts (not merely rumors or gossip) that support your reasonable suspicion that an employee is using illegal drugs.

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 male employees, or only employees under a specific age. 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 is 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 use of illegal drugs, because such individuals are not protected by federal or state disability laws. The only possible exception would be an employee using medical marijuana for a qualifying disability, which an employer may be required to reasonably accommodate. The Oregon Court of Appeals has ruled that medical marijuana may be a reasonable accommodation for a disability. The Oregon Supreme Court heard oral arguments on this case this month and a decision is pending.

In your situation with Mary Lou, ask yourself the following questions: Did you previously advise her that your company has a drug testing policy? Did you explain in the policy that employees could be tested based on reasonable suspicion of drug use? Did you provide employees, including Mary Lou, sufficient advance notice of the policy? What facts and evidence led to the suspicion of drug use, and is the suspicion reasonable in light of those facts and evidence?

If you answered no to any of these questions, watch out. Instead of requiring a drug test, you'll be much safer addressing Mary Lou's specific performance deficiencies by following your regular disciplinary policies. If Mary Lou is acting in a bizarre or inappropriate manner, arriving to work late, taking too many breaks or simply not completing her job duties satisfactorily, focus on those issues and apply your existing discipline rules as you would with other employees with similar performance deficiencies.

On The Job is written by the staff of the Oregon Bureau of Labor and Industries. Phone BOLI at [phone], or write to BOLI, 800 N.E. Oregon St., No. 32, Portland, OR 97232. On the Web, see egov.oregon.gov/BOLI/.