Drug and Alcohol Testing Policies

Employee workplace drug and alcohol abuse not only is a serious safety threat to the workforce but also costs money. While many Union employers have drug and alcohol testing provisions in their collective bargaining agreements, many non-Union employers do not have any drug and alcohol testing policies in place. For this reason, non-Union employers should create a written policy which informs employees of random drug and alcohol testing and or reasonable suspicion testing.

Two recent cases illustrate this point. First, in Lamont v. Riverton City Board of Appeals, No. 20160445-CA (October 26, 2017), the Utah Court of Appeals upheld a non-Union employer's decision to fire an employee for refusing to submit to an alcohol test based on the employer's written policy that required an employee to submit to one when the employer had reasonable suspicion to believe that the employee was under the influence. The Court ruled that the employee's refusal to take the test constituted insubordination. Because the employer's policy did not define what "reasonable suspicion" is, the Court applied the "reasonable suspicion" definition commonly applied in criminal law.

The second case involves a decision right here in Oregon. In Bibolet v. Employment Department, Case No. CA 15422 (November 1, 2017), the employer had a written policy that required all employees involved in a work-related motor vehicle accident to take a drug test. The Oregon Court of Appeals upheld the denial of unemployment benefits to the employee after the employer discharged the employee for failing a drug test post-accident. The Court relied heavily on the fact that the employer's written policy complied with the Oregon Administrative Rules that govern employer drug and alcohol policies.

Lessons to be learned by all non-Union employers:

  • Have a clear written policy, distributed to all employees.
  • Define all the reasons for which an employee will be required to submit to a drug or alcohol test.
  • Require all employees to read and acknowledge receipt of the policy.
  • If you are an Oregon employer, ensure that your written policy complies with the Oregon Administrative Rules applicable to drug and alcohol testing policies.
  • Provide training to all employees concerning the policy so that employees know in advance what to expect.
  • Train all managers and supervisors on your drug and alcohol testing policy.
  • Provide a checklist for managers and supervisors to follow in the event there is reason to believe an employee is under the influence of drugs or alcohol.
  • Ensure that you apply your drug and alcohol policy in a fair and consistent manner to avoid any charges of discrimination, retaliation or wrongful termination.

If you have any questions or need assistance with creating a written drug and alcohol policy for your company, please contact our office.