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Summary of differences between federal and state regulations
Drug testing
If the employer has reasonable grounds to believe that the individual is under the influence of intoxicating liquor, the employer may require, as a condition for employment or continuation of employment, the administration of a blood alcohol content test by a third party or a breathalyzer test. The employer shall not require the employee to pay the cost of administering any such test.
An individual is “under the influence of intoxicating liquor” when the individual’s blood alcohol content exceeds the amount prescribed in a collective bargaining agreement or the amount prescribed in the employer’s work rules if there is no applicable collective bargaining provision.
In addition, the way drug testing is conducted is regulated under the state’s Public Health, Housing, and Environment statutes. An employer doing on-site testing must register with the Department of Human Services and pay an annual $50 filing fee. Tests must be administered according to the Food and Drug Administration package insert that accompanies the test. Those who administer the tests must be trained in the use of on-site screening tests by the manufacturer. If the test is positive, and the positive test result may result in adverse employment action, the specimen shall be submitted to a licensed clinical laboratory for confirmation before the on-site test result is released.
Workers’ compensation
Oregon’s workers' compensation law denies workers' compensation benefits when an employer shows, by a preponderance of the evidence, that a major contributing cause of an employee's injury was the consumption of alcoholic beverages or the unlawful use of controlled substances, unless the employer permitted or knew of the consumption.
Unemployment compensation
Oregon’s unemployment compensation law denies unemployment compensation benefits if the employee is discharged for failing to comply with a reasonable drug-free workplace policy which may include drug testing. Benefits may also be denied if an employee is discharged for absences or tardiness due to alcohol or illegal drug use unless the employee was participating in a recognized rehabilitation program at the time or, or is participating within ten days of the discharge or suspension.
State
ContactsOregon Workers’ Compensation Division
Regulations
Drug testing
Oregon Rev. Stat. §659A.300 https://www.oregonlegislature.gov/bills_laws/ors/ors659A.html
Oregon Rev. Stat. §438.355 https://www.oregonlegislature.gov/bills_laws/Pages/ORS.aspx
Workers’ compensation
Ore. Rev. Stat. § 656.005(7) https://www.oregonlegislature.gov/bills_laws/Pages/ORS.aspx
Unemployment compensation
Ore. Rev. Stat. §657.176 https://www.oregonlegislature.gov/bills_laws/Pages/ORS.aspx
and Oregon Admin. Rule 471-030-0036, 471-030-0130, 471-030-0135, 471-030-0140, 471-030-0145 https://secure.sos.state.or.us/oard/ruleSearch.action
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document