With the legalization of marijuana in Oregon and Washington, many employers are seeing an uptick in positive drug tests. There is still some uncertainty among employers and employees alike about what may be acceptable and appropriate “use” and what constitutes a violation of a workplace policy. It is clear that employers still have the right to maintain a zero tolerance policy, but once you have the policy how do you enforce it? One situation that has become more frequent is a tip from a coworker or an anonymous source that an employee “smokes marijuana regularly” or even that employees are using marijuana in the workplace. The appropriate response to those tips is going to depend on your company policy. Do you have a policy that prohibits drug use either on or off the job? Does your policy say you have the right to test employees? What are the specific times (pre-employment, post-incident, random, reasonable suspicion, etc.) that you can test? Is an anonymous tip or a tip from a coworker enough to send your employee in for a reasonable suspicion drug test?
An anonymous tip or an isolated report from a coworker is not enough, on its own, to require a drug test even under a zero tolerance policy. Generally speaking, in order to require that an employee submit to a drug test you must have a policy that says you can, and the individual circumstances have to fit the reasons for drug testing that are enumerated in your policy. Most drug and alcohol policies allow an employer to test when they have “reasonable suspicion” that an employee is violating the policy. Reasonable suspicion doesn’t mean you have to be certain. But you do have to have objective, credible facts that form the basis for a suspicion prior to requiring an employee to submit to a test.
A report of drug use should prompt an investigation such as a check-in with the employee and an evaluation of whether there are other factors beyond the tip that might add up to “reasonable suspicion.” When you talk to the employee, does her performance, appearance, odor, or behavior indicate that she may be using marijuana in violation of your policy? Consider the credibility of the source of the tip; does the person making the report potentially have a grudge against the employee he or she is accusing? (For example, it’s not unusual for an employee going through a difficult divorce to be the subject of a report by a disgruntled spouse.) If you see signs that lead you to believe you may have reasonable suspicion, such as bloodshot eyes and an odor coupled with a glazed demeanor or inappropriate laughter, you should document those observations. Then ask another member of your management team if they notice anything out of the ordinary or troubling about the appearance, behavior, or performance of the employee and have them document their observations as well.
If you and another member of your management team think you have reasonable suspicion, then you should send the employee in for a drug test. Explain the factors that you have observed to the employee and give her an opportunity to explain. Beware, however, of letting the employee talk you out of the test. If her excuse is that she couldn’t sleep the night before and she is just tired, you can reply “if that’s all it is, then your test will be clean. But based on what we have seen today, we have to make sure. It’s our obligation to keep the workplace safe.”
Once you have decided to drug test an employee, it is important that you actually take the employee in to be tested or have the testing or sample collection done on-site. If it’s a reasonable suspicion test, the employee should be taken off the job until you receive the test results. In the event that the employee is clean, then the employee should be paid for the time that she missed while waiting for the results. If the employee tests positive, you should either terminate or offer a last chance agreement according to your company policies and practices.
Of course situations and workplaces all have their unique culture and challenges. If you do receive a tip of drug use, be sure to consult with your employment attorney to ensure that your response is appropriate.
About the Author
Lorraine Hoffman is an employment and labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.