Bill Text: OR SB645 | 2011 | Regular Session | Introduced
Bill Title: Relating to drug-free workplace policies.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB645 Detail]
Download: Oregon-2011-SB645-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2818
Senate Bill 645
Sponsored by Senator GIROD
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows employer to adopt comprehensive drug-free workplace
program, including drug and alcohol testing policies. Establishes
requirements for program and policies, including requirements for
collection of samples and testing procedures.
Exempts employer from civil actions under certain conditions
when employer has adopted comprehensive drug-free workplace
program. Modifies definition of 'compensable injury' in workers'
compensation law. Modifies application of disability law in
relation to illegal use of drugs.
Requires applicant for medical marijuana registry
identification card to notify employer before using marijuana.
Provides that Oregon Medical Marijuana Act does not require
employer to make workplace accommodation regardless of where
marijuana use occurs.
A BILL FOR AN ACT
Relating to drug-free workplace policies; creating new
provisions; and amending ORS 475.309, 475.340, 656.005,
657.176, 659A.124 and 659A.127.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Definitions. As used in sections 1 to 9 of
this 2011 Act, unless the context otherwise requires:
(1) 'Alcohol' means ethanol, isopropanol or methanol.
(2) 'Comprehensive drug-free workplace program' means employer
policies and benefits described in section 2 of this 2011 Act.
(3) 'Drug' means a substance considered unlawful under the
schedules of the controlled substances section of the
Comprehensive Drug Abuse Prevention and Control Act of 1970, 21
U.S.C. 812, or a add of the substance.
(4) 'Employee' means an individual in the service of an
employer.
(5)(a) 'Employer' includes any person, firm, company,
corporation, labor organization, employment agency or joint
labor-management committee that has one or more full-time
employees employed in the same business, or in or about the same
establishment, under any contract of hire, express or implied,
oral or written.
(b) 'Employer' does not include the United States or a public
body, as defined in ORS 174.109.
(6) 'Good faith' means reasonable reliance on fact, or that
which is held out to be factual, without the intent to deceive or
be deceived and without reckless or malicious disregard for the
truth.
(7) 'Prospective employee' means an individual who has made
application to an employer, whether written or oral, to become an
employee.
(8) 'Sample' means urine, blood, breath, saliva, hair or other
substances from the individual being tested. + }
SECTION 2. { + Comprehensive drug-free workplace program. An
employer may voluntarily establish a comprehensive drug-free
workplace program that includes:
(1) A written policy as described in section 3 of this 2011
Act.
(2) An awareness program to inform employees of the dangers of
drug and alcohol use in the workplace. The awareness program must
meet the following requirements:
(a) If the employer has an employee assistance program, the
employer shall inform the employees of the benefits and services
of the employee assistance program through the posting of notices
or alternative means. In addition, the employer shall give the
employees notice of any policies and procedures regarding access
to and use of the employee assistance program.
(b) If the employer does not have an employee assistance
program, the employer shall give the employees information about
drug and alcohol abuse programs and about persons or
organizations available to assist employees with drug or alcohol
problems.
(3) Training of supervisory personnel who are involved with
drug or alcohol testing under the comprehensive drug-free
workplace program. + }
SECTION 3. { + Employer policy on testing. (1) As used in
this section, 'testing' includes testing or retesting for the
presence or evidence of use of drugs or alcohol.
(2)(a) An employer may carry out testing only after adopting a
written policy on testing and informing employees of the policy.
(b) The employer may inform the employees of the policy by
distributing a copy of the policy to each employee subject to
testing or making the policy available to employees in the same
manner as the employer informs employees of other personnel
practices, such as including the policy in a personnel handbook
or manual, posting the policy in a place accessible to employees
or providing electronic access to the policy through an intranet
or other electronic transmission.
(c) An employer may not carry out testing under this section
until at least 30 days after the employer has informed the
employees of the written policy on testing.
(3) The written policy on testing must, at a minimum, include:
(a) A statement of the employer's policy regarding drug and
alcohol use by employees.
(b) A description of those employees or prospective employees
who are subject to testing.
(c) The circumstances under which testing may be required.
(d) The substances for which testing may be required.
(e) A description of the testing methods and collection
procedures to be used, including an employee's right to a
confirmatory test to be reviewed by a licensed physician or
doctor of osteopathy after an initial positive drug or alcohol
test result.
(f) The consequences of a refusal to submit to testing.
(g) The adverse employment action that may be taken based on
employee conduct, the testing procedure or test results.
(h) A statement of the employer's policy regarding the
confidentiality of test results.
(4) An employer may require the collection and testing of an
employee's or prospective employee's sample for any job-related
purpose, consistent with business necessity and the terms of the
employer's written policy on testing, including:
(a) Investigation of an individual employee for the presence of
drugs or alcohol;
(b) Investigation of a prospective employee for the presence of
drugs;
(c) Investigation of an accident in the workplace;
(d) Maintenance of safety for employees, customers, clients or
the public at large;
(e) Maintenance of productivity, the quality of products or
services, or security of property or information;
(f) Reasonable suspicion that an employee may be affected by
the use of drugs or alcohol and that the use may adversely affect
the employee's job performance or the work environment; and
(g) Follow-up testing after an employee's drug or alcohol
treatment or rehabilitation.
(5) In addition to testing required under subsection (4) of
this section, an employer may require employees or groups of
employees to undergo testing on a group, unannounced, random or
chance basis.
(6) This section may not be construed to discourage, restrict,
limit, prohibit or require on-site testing. + }
SECTION 4. { + Collection of samples. (1) An employer may
test an employee for the presence of drugs or alcohol. An
employer may test a prospective employee for the presence of
drugs.
(2) To test reliably, an employer may require an employee or
prospective employee to provide a sample and to present reliable
individual identification to the person collecting the sample.
Collection of the sample must conform to acceptable scientific
practices. The employer may designate the type of sample to be
used for testing.
(3) Sample collection shall be performed in a manner that
guarantees the individual's privacy to the maximum extent
consistent with ensuring that the sample is not contaminated,
adulterated or misidentified.
(4) An employer shall pay the entire actual costs for drug and
alcohol testing required of employees and prospective
employees. + }
SECTION 5. { + Testing procedures. (1) Sample collection and
testing for drugs and alcohol shall be performed under reasonable
and sanitary conditions. The individual collecting samples shall
document the sample, including labeling the sample to preclude to
the extent reasonable the possibility of misidentification of the
individual tested in relation to the test result provided, and
shall provide the individual tested with an opportunity to
provide medical information that may be relevant to the test,
including identifying current or recently used prescription and
nonprescription drugs.
(2) Sample collection, storage and transportation to the place
of testing must be performed in a manner reasonably designed to
preclude the possibility of sample contamination, adulteration or
misidentification.
(3) Sample testing must comply with scientifically accepted
analytical methods and procedures.
(4) Drug testing, including on-site drug testing, must include
confirmation of a positive drug test result if the employer
intends to take any adverse employment action based on the
positive drug test result. The confirmation test must use a
different analytical process than was used in the initial drug
test. The confirmation test must be a chromatographic technique
such as gas chromatography-mass spectrometry or another
comparably reliable analytical method.
(5) A drug test conducted under this section for a drug for
which the United States Department of Health and Human Services
has established a cutoff level is considered to have yielded a
positive result if the test establishes the presence of the drug
at levels equal to or greater than that cutoff level. For a drug
for which the United States Department of Health and Human
Services has not established a cutoff level, the employer shall,
in the written policy on testing, inform employees of the cutoff
level that the employer will use to establish the presence of the
drug. + }
SECTION 6. { + Disciplinary or rehabilitative procedures. (1)
An employer may take adverse employment action based on:
(a) A positive drug or alcohol test result that indicates a
violation of the employer's written policy on testing;
(b) The refusal of an employee or prospective employee to
provide a sample for drug testing;
(c) The refusal of an employee to provide a sample for alcohol
testing; or
(d) Conduct by an employee that interferes with the testing
process, including but not limited to:
(A) Refusal or failure to complete proper documentation that
authorizes the test;
(B) Refusal or failure to sign a chain of custody form;
(C) Presentation of false identification;
(D) Placement of an adulterant in the employee's sample, when
the adulterant is identified by a testing facility; or
(E) Interference with the accuracy of the test results by
conduct that includes dilution of a sample.
(2) Adverse employment action under subsection (1) of this
section may include, but is not limited to:
(a) A requirement that the employee enroll and participate in
an employer provided or employer approved rehabilitation,
treatment or counseling program as a condition of employment. The
program may include additional drug and alcohol testing. Costs of
participating in the program may or may not be covered by the
employer's health plan or policies.
(b) Suspension of the employee, with or without pay, for a
designated period.
(c) Termination of employment.
(d) In the case of drug testing, refusal to hire a prospective
employee.
(e) Other adverse employment action. + }
SECTION 7. { + Confidentiality of results; access to records.
A communication received by an employer relevant to drug or
alcohol test results and received through the employer's testing
program is a confidential and privileged communication and may
not be disclosed except:
(1) To the tested employee or tested prospective employee or
another person designated in writing by the employee or
prospective employee;
(2) To a union representing the employee;
(3) To individuals designated by an employer to receive and
evaluate test results or hear the explanation of the employee or
prospective employee;
(4) To an authorized substance abuse treatment program or an
employee assistance program;
(5) To respond to a claim by the employee, including but not
limited to a claim for workers' compensation benefits or
unemployment insurance compensation, a complaint before an
administrative agency or a claim in litigation; or
(6) As ordered by a court or administrative agency. + }
SECTION 8. { + Cause of action against employer. (1) Except
as provided in this section, a cause of action does not arise
against an employer who establishes a comprehensive drug-free
workplace program described in section 2 of this 2011 Act and a
drug or alcohol testing program in accordance with the testing
and policy safeguards provided for under sections 1 to 9 of this
2011 Act for any of the following:
(a) Testing for drugs or alcohol.
(b) Taking action based in whole or in part on:
(A) A positive drug or alcohol test result indicating the
presence of drugs or alcohol; or
(B) A refusal of an employee or prospective employee to submit
to a drug or alcohol test.
(c) Failing to test for drugs or alcohol, or failing to test
for a specific drug or other controlled substance.
(d) Failing to detect any specific drug or other controlled
substance.
(e) Terminating or suspending a substance abuse prevention or
testing program or policy.
(f) Taking action related to a false negative drug or alcohol
test result.
(2) Except as provided in subsection (4) of this section, a
cause of action does not arise against an employer who has
established a program of drug or alcohol testing in accordance
with the testing and policy safeguards provided for under
sections 1 to 9 of this 2011 Act, unless the following conditions
exist:
(a) The employer's action was based on a false positive drug or
alcohol test result; and
(b) The employer knew or clearly should have known that the
test result was in error and the employer ignored the correct
test result because of a reckless, malicious or negligent
disregard for the truth or a willful intent to deceive or be
deceived.
(3) A cause of action for defamation, libel, slander or damage
to reputation does not arise against an employer who has
established a program of drug or alcohol testing in accordance
with the testing and policy safeguards provided for under
sections 1 to 9 of this 2011 Act, unless the following conditions
exist:
(a) The employer disclosed test results to a person other than
the employer, an authorized employee, agent or representative of
the employer, the tested employee or the tested prospective
employee, an authorized agent or representative of the employee
or prospective employee, an authorized substance abuse treatment
program or an employee assistance program;
(b) The test results incorrectly indicate the presence of drugs
or alcohol; and
(c) The employer recklessly disclosed the test results.
(4) In any cause of action based upon a false positive drug or
alcohol test result:
(a) The results of a drug or alcohol test conducted in
compliance with the testing and policy safeguards provided for
under sections 1 to 9 of this 2011 Act are presumed to be valid;
and
(b) The employer is not liable for monetary damages if the
employer's reliance on the false positive test result was
reasonable and in good faith. + }
SECTION 9. { + The Director of the Employment Department may
adopt rules consistent with sections 1 to 9 of this 2011 Act to
provide guidance, standards and procedures related to sections 1
to 9 of this 2011 Act. Nothing in this section may be construed
to give the director enforcement authority or enforcement duties
related to sections 1 to 9 of this 2011 Act. + }
SECTION 10. ORS 656.005 is amended to read:
656.005. (1) 'Average weekly wage' means the Oregon average
weekly wage in covered employment, as determined by the
Employment Department, for the last quarter of the calendar year
preceding the fiscal year in which the injury occurred.
(2) 'Beneficiary' means an injured worker, and the husband,
wife, child or dependent of a worker, who is entitled to receive
payments under this chapter. 'Beneficiary' does not include:
(a) A spouse of an injured worker living in a state of
abandonment for more than one year at the time of the injury or
subsequently. A spouse who has lived separate and apart from the
worker for a period of two years and who has not during that time
received or attempted by process of law to collect funds for
support or maintenance is considered living in a state of
abandonment.
(b) A person who intentionally causes the compensable injury to
or death of an injured worker.
(3) 'Board' means the Workers' Compensation Board.
(4) 'Carrier-insured employer' means an employer who provides
workers' compensation coverage with the State Accident Insurance
Fund Corporation or an insurer authorized under ORS chapter 731
to transact workers' compensation insurance in this state.
(5) 'Child' includes a posthumous child, a child legally
adopted prior to the injury, a child toward whom the worker
stands in loco parentis, a child born out of wedlock and a
stepchild, if such stepchild was, at the time of the injury, a
member of the worker's family and substantially dependent upon
the worker for support. A dependent child who is an invalid is a
child, for purposes of benefits, regardless of age, so long as
the child was an invalid at the time of the accident and
thereafter remains an invalid substantially dependent on the
worker for support. For purposes of this chapter, a dependent
child who is an invalid is considered to be a child under 18
years of age.
(6) 'Claim' means a written request for compensation from a
subject worker or someone on the worker's behalf, or any
compensable injury of which a subject employer has notice or
knowledge.
(7)(a) A 'compensable injury' is an accidental injury, or
accidental injury to prosthetic appliances, arising out of and in
the course of employment requiring medical services or resulting
in disability or death; an injury is accidental if the result is
an accident, whether or not due to accidental means, if it is
established by medical evidence supported by objective findings,
subject to the following limitations:
(A) No injury or disease is compensable as a consequence of a
compensable injury unless the compensable injury is the major
contributing cause of the consequential condition.
(B) If an otherwise compensable injury combines at any time
with a preexisting condition to cause or prolong disability or a
need for treatment, the combined condition is compensable only
if, so long as and to the extent that the otherwise compensable
injury is the major contributing cause of the disability of the
combined condition or the major contributing cause of the need
for treatment of the combined condition.
(b) 'Compensable injury' does not include:
(A) Injury to any active participant in assaults or combats
which are not connected to the job assignment and which amount to
a deviation from customary duties;
(B) Injury incurred while engaging in or performing, or as the
result of engaging in or performing, any recreational or social
activities primarily for the worker's personal pleasure; or
(C) Injury the major contributing cause of which is
demonstrated to be by a preponderance of the evidence the injured
worker's consumption of alcoholic beverages or the unlawful
consumption of any controlled substance, unless the employer
permitted, encouraged or had actual knowledge of such
consumption. { + Evidence of a positive post-accident drug
test administered within 32 hours after an accident, or evidence
of a positive post-accident alcohol test administered within
eight hours after an accident, establishes a rebuttable
presumption that the injured worker's consumption was a major
contributing cause of the injury. + }
(c) A 'disabling compensable injury' is an injury which
entitles the worker to compensation for disability or death. An
injury is not disabling if no temporary benefits are due and
payable, unless there is a reasonable expectation that permanent
disability will result from the injury.
(d) A 'nondisabling compensable injury' is any injury which
requires medical services only.
(8) 'Compensation' includes all benefits, including medical
services, provided for a compensable injury to a subject worker
or the worker's beneficiaries by an insurer or self-insured
employer pursuant to this chapter.
(9) 'Department' means the Department of Consumer and Business
Services.
(10) 'Dependent' means any of the following-named relatives of
a worker whose death results from any injury: Father, mother,
grandfather, grandmother, stepfather, stepmother, grandson,
granddaughter, brother, sister, half sister, half brother, niece
or nephew, who at the time of the accident, are dependent in
whole or in part for their support upon the earnings of the
worker. Unless otherwise provided by treaty, aliens not residing
within the United States at the time of the accident other than
father, mother, husband, wife or children are not included within
the term ' dependent. '
(11) 'Director' means the Director of the Department of
Consumer and Business Services.
(12)(a) 'Doctor' or 'physician' means a person duly licensed to
practice one or more of the healing arts in any country or in any
state, territory or possession of the United States within the
limits of the license of the licentiate.
(b) Except as otherwise provided for workers subject to a
managed care contract, 'attending physician' means a doctor,
physician or physician assistant who is primarily responsible for
the treatment of a worker's compensable injury and who is:
(A) A medical doctor or doctor of osteopathy licensed under ORS
677.100 to 677.228 by the Oregon Medical Board or an oral and
maxillofacial surgeon licensed by the Oregon Board of Dentistry
or a similarly licensed doctor in any country or in any state,
territory or possession of the United States; or
(B) For a cumulative total of 60 days from the first visit on
the initial claim or for a cumulative total of 18 visits,
whichever occurs first, to any of the medical service providers
listed in this subparagraph, a:
(i) Doctor or physician licensed by the State Board of
Chiropractic Examiners for the State of Oregon under ORS chapter
684 or a similarly licensed doctor or physician in any country or
in any state, territory or possession of the United States;
(ii) Podiatric physician and surgeon licensed by the Oregon
Medical Board under ORS 677.805 to 677.840 or a similarly
licensed doctor or physician in any country or in any state,
territory or possession of the United States;
(iii) Physician assistant licensed by the Oregon Medical Board
in accordance with ORS 677.505 to 677.525 or a similarly licensed
physician assistant in any country or in any state, territory or
possession of the United States; or
(iv) Doctor of naturopathy or naturopathic physician licensed
by the Oregon Board of Naturopathic Medicine under ORS chapter
685 or a similarly licensed doctor or physician in any country or
in any state, territory or possession of the United States.
(c) Except as otherwise provided for workers subject to a
managed care contract, 'attending physician' does not include a
physician who provides care in a hospital emergency room and
refers the injured worker to a primary care physician for
follow-up care and treatment.
(d) 'Consulting physician' means a doctor or physician who
examines a worker or the worker's medical record to advise the
attending physician or nurse practitioner authorized to provide
compensable medical services under ORS 656.245 regarding
treatment of a worker's compensable injury.
(13)(a) 'Employer' means any person, including receiver,
administrator, executor or trustee, and the state, state
agencies, counties, municipal corporations, school districts and
other public corporations or political subdivisions, who
contracts to pay a remuneration for and secures the right to
direct and control the services of any person.
(b) Notwithstanding paragraph (a) of this subsection, for
purposes of this chapter, the client of a temporary service
provider is not the employer of temporary workers provided by the
temporary service provider.
(c) As used in paragraph (b) of this subsection, 'temporary
service provider' has the meaning for that term provided in ORS
656.850.
(14) 'Insurer' means the State Accident Insurance Fund
Corporation or an insurer authorized under ORS chapter 731 to
transact workers' compensation insurance in this state or an
assigned claims agent selected by the director under ORS 656.054.
(15) 'Consumer and Business Services Fund' means the fund
created by ORS 705.145.
(16) 'Invalid' means one who is physically or mentally
incapacitated from earning a livelihood.
(17) 'Medically stationary' means that no further material
improvement would reasonably be expected from medical treatment,
or the passage of time.
(18) 'Noncomplying employer' means a subject employer who has
failed to comply with ORS 656.017.
(19) 'Objective findings' in support of medical evidence are
verifiable indications of injury or disease that may include, but
are not limited to, range of motion, atrophy, muscle strength and
palpable muscle spasm. 'Objective findings' does not include
physical findings or subjective responses to physical
examinations that are not reproducible, measurable or observable.
(20) 'Palliative care' means medical service rendered to reduce
or moderate temporarily the intensity of an otherwise stable
medical condition, but does not include those medical services
rendered to diagnose, heal or permanently alleviate or eliminate
a medical condition.
(21) 'Party' means a claimant for compensation, the employer of
the injured worker at the time of injury and the insurer, if any,
of such employer.
(22) 'Payroll' means a record of wages payable to workers for
their services and includes commissions, value of exchange labor
and the reasonable value of board, rent, housing, lodging or
similar advantage received from the employer. However, 'payroll '
does not include overtime pay, vacation pay, bonus pay, tips,
amounts payable under profit-sharing agreements or bonus payments
to reward workers for safe working practices. Bonus pay is
limited to payments which are not anticipated under the contract
of employment and which are paid at the sole discretion of the
employer. The exclusion from payroll of bonus payments to reward
workers for safe working practices is only for the purpose of
calculations based on payroll to determine premium for workers'
compensation insurance, and does not affect any other calculation
or determination based on payroll for the purposes of this
chapter.
(23) 'Person' includes partnership, joint venture, association,
limited liability company and corporation.
(24)(a) 'Preexisting condition' means, for all industrial
injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes to
disability or need for treatment, provided that:
(A) Except for claims in which a preexisting condition is
arthritis or an arthritic condition, the worker has been
diagnosed with such condition, or has obtained medical services
for the symptoms of the condition regardless of diagnosis; and
(B)(i) In claims for an initial injury or omitted condition,
the diagnosis or treatment precedes the initial injury;
(ii) In claims for a new medical condition, the diagnosis or
treatment precedes the onset of the new medical condition; or
(iii) In claims for a worsening pursuant to ORS 656.273 or
656.278, the diagnosis or treatment precedes the onset of the
worsened condition.
(b) 'Preexisting condition' means, for all occupational disease
claims, any injury, disease, congenital abnormality, personality
disorder or similar condition that contributes to disability or
need for treatment and that precedes the onset of the claimed
occupational disease, or precedes a claim for worsening in such
claims pursuant to ORS 656.273 or 656.278.
(c) For the purposes of industrial injury claims, a condition
does not contribute to disability or need for treatment if the
condition merely renders the worker more susceptible to the
injury.
(25) 'Self-insured employer' means an employer or group of
employers certified under ORS 656.430 as meeting the
qualifications set out by ORS 656.407.
(26) 'State Accident Insurance Fund Corporation' and '
corporation' mean the State Accident Insurance Fund Corporation
created under ORS 656.752.
(27) 'Subject employer' means an employer who is subject to
this chapter as provided by ORS 656.023.
(28) 'Subject worker' means a worker who is subject to this
chapter as provided by ORS 656.027.
(29) 'Wages' means the money rate at which the service rendered
is recompensed under the contract of hiring in force at the time
of the accident, including reasonable value of board, rent,
housing, lodging or similar advantage received from the employer,
and includes the amount of tips required to be reported by the
employer pursuant to section 6053 of the Internal Revenue Code of
1954, as amended, and the regulations promulgated pursuant
thereto, or the amount of actual tips reported, whichever amount
is greater. The State Accident Insurance Fund Corporation may
establish assumed minimum and maximum wages, in conformity with
recognized insurance principles, at which any worker shall be
carried upon the payroll of the employer for the purpose of
determining the premium of the employer.
(30) 'Worker' means any person, including a minor whether
lawfully or unlawfully employed, who engages to furnish services
for a remuneration, subject to the direction and control of an
employer and includes salaried, elected and appointed officials
of the state, state agencies, counties, cities, school districts
and other public corporations, but does not include any person
whose services are performed as an inmate or ward of a state
institution or as part of the eligibility requirements for a
general or public assistance grant. For the purpose of
determining entitlement to temporary disability benefits or
permanent total disability benefits under this chapter, 'worker'
does not include a person who has withdrawn from the workforce
during the period for which such benefits are sought.
(31) 'Independent contractor' has the meaning for that term
provided in ORS 670.600.
SECTION 11. ORS 657.176 is amended to read:
657.176. (1) An authorized representative designated by the
Director of the Employment Department shall promptly examine each
claim to determine whether an individual is subject to
disqualification as a result of a separation, termination,
leaving, resignation, or disciplinary suspension from work or as
a result of failure to apply for or accept work and shall
promptly enter a director's decision if required by ORS 657.267.
The authorized representative may address issues raised by
information before the authorized representative, including but
not limited to the nature of the separation, notwithstanding the
way the parties characterize those issues.
(2) An individual shall be disqualified from the receipt of
benefits until the individual has performed service in employment
subject to this chapter or the equivalent law of another state or
Canada or as defined in ORS 657.030 (2) or as an employee of the
federal government, for which remuneration is received that
equals or exceeds four times the individual's weekly benefit
amount subsequent to the week in which the act causing the
disqualification occurred, if the authorized representative
designated by the director finds that the individual:
(a) Has been discharged for misconduct connected with work;
(b) Has been suspended from work for misconduct connected with
work;
(c) Voluntarily left work without good cause;
(d) Failed without good cause to apply for available suitable
work when referred by the employment office or the director;
(e) Failed without good cause to accept suitable work when
offered;
(f) Has been discharged or suspended for being absent or tardy
in reporting to work and the absence or tardiness occurred as a
result of the unlawful use of any drug unless the person was
participating in a recognized drug rehabilitation program at the
time of the absence or tardiness, or is so participating within
10 days after the date of the discharge or suspension, and the
person provides to the Employment Department documentation of
program participation. As used in this paragraph, 'unlawful use'
does not include the use of a drug taken under the supervision of
a licensed health care professional and in accordance with the
prescribed directions for consumption, or other uses authorized
by the laws of this state;
(g) Has been discharged or suspended for being absent or tardy
in reporting to work and the absence or tardiness occurred as the
result of the use of alcohol on a second or any subsequent
occasion within a period of 12 months unless the person was
participating in a recognized alcohol rehabilitation program at
the time of the absence or tardiness, or is so participating
within 10 days after the date of the discharge or suspension, and
the person provides to the department documentation of program
participation; or
(h) Has committed a disqualifying act described in subsection
(9) or (10) of this section.
(3) If the authorized representative designated by the director
finds that an individual was discharged for misconduct because of
the individual's commission of a felony or theft in connection
with the individual's work, all benefit rights based on wages
earned prior to the date of the discharge shall be canceled if
the individual's employer notifies the director of the discharge
within 10 days following issuance of the notice provided for in
ORS 657.265 or 30 days following issuance of the notice provided
for in ORS 657.266, and:
(a) The individual has admitted commission of the felony or
theft to an authorized representative of the director;
(b) The individual has signed a written admission of the felony
or theft and the written admission has been presented to an
authorized representative of the director; or
(c) The felony or theft has resulted in a conviction by a court
of competent jurisdiction.
(4) An individual disqualified under subsection (2) of this
section shall have the individual's maximum benefit amount
reduced by eight times the individual's weekly benefit amount.
However, in no event shall the individual's maximum benefit
amount be reduced to less than the individual's weekly benefit
amount unless the individual has previously received benefits
during the individual's benefit year.
(5) An individual may not be disqualified from receiving
benefits under subsection (2)(c) or (e) of this section or under
ORS 657.200 if the individual ceases work or fails to accept work
when a collective bargaining agreement between the individual's
bargaining unit and the individual's employer is in effect and
the employer unilaterally modifies the amount of wages payable
under the agreement, in breach of the agreement.
(6) For purposes of applying subsection (2) of this section,
when an individual has notified an employer that the individual
will leave work on a specific date and it is determined that:
(a) The separation would be for reasons that constitute good
cause;
(b) The individual voluntarily left work without good cause
prior to the date of the impending good cause voluntary leaving
date; and
(c) The actual voluntary leaving of work occurred no more than
15 days prior to the planned date of voluntary leaving,
then the separation from work shall be adjudicated as if the
actual voluntary leaving had not occurred and the planned
voluntary leaving had occurred. However, the individual shall be
ineligible for benefits for the period including the week in
which the actual voluntary leaving occurred through the week
prior to the week of the planned good cause voluntary leaving
date.
(7) For purposes of applying subsection (2) of this section,
when an employer has notified an individual that the individual
will be discharged on a specific date and it is determined that:
(a) The discharge would not be for reasons that constitute
misconduct connected with the work;
(b) The individual voluntarily left work without good cause
prior to the date of the impending discharge; and
(c) The voluntary leaving of work occurred no more than 15 days
prior to the date of the impending discharge,
then the separation from work shall be adjudicated as if the
voluntary leaving had not occurred and the discharge had
occurred. However, the individual shall be ineligible for
benefits for the period including the week in which the voluntary
leaving occurred through the week prior to the week in which the
individual would have been discharged.
(8) For purposes of applying subsection (2) of this section,
when an individual has notified an employer that the individual
will leave work on a specific date and it is determined that:
(a) The voluntary leaving would be for reasons that do not
constitute good cause;
(b) The employer discharged the individual, but not for
misconduct connected with work, prior to the date of the planned
voluntary leaving; and
(c) The actual discharge occurred no more than 15 days prior to
the planned voluntary leaving,
then the separation from work shall be adjudicated as if the
discharge had not occurred and the planned voluntary leaving had
occurred. However, the individual shall be eligible for benefits
for the period including the week in which the actual discharge
occurred through the week prior to the week of the planned
voluntary leaving date.
(9)(a) For the purposes of subsection (2) of this section, an
individual is considered to have committed a disqualifying act
when the individual:
(A) Fails to comply with the terms and conditions of a
reasonable written policy established by the employer or through
collective bargaining, which may include blanket, random,
periodic and probable cause testing, that governs the use, sale,
possession or effects of drugs or alcohol in the workplace;
(B) Fails or refuses to take a drug or alcohol test as required
by the employer's reasonable written policy;
(C) Refuses to cooperate with or subverts or attempts to
subvert a drug or alcohol testing process in any
employment-related test required by the employer's reasonable
written policy, including but not limited to:
(i) Refusal or failure to complete proper documentation that
authorizes the test;
(ii) Refusal or failure to sign a chain of custody form;
(iii) Presentation of false identification;
(iv) Placement of an adulterant in the individual's specimen
for testing, when the adulterant is identified by a testing
facility; or
(v) Interference with the accuracy of the test results by
conduct that includes dilution or adulteration of a test
specimen;
(D) Is under the influence of intoxicants while performing
services for the employer;
(E) Possesses a drug unlawfully or in violation of the
employer's reasonable written policy during work;
(F) Tests positive for alcohol or an unlawful drug in
connection with employment; or
(G) Refuses to enter into or violates the terms of a last
chance agreement with the employer.
(b)(A) Except as provided in subparagraph (B) of this
paragraph, an individual is not considered to have committed a
disqualifying act under this subsection if the individual, on the
date of separation or within 10 days after the date of
separation, is participating in a recognized drug or alcohol
rehabilitation program and provides documentation of
participation in the program to the department.
(B) This paragraph does not apply to an individual who has
refused to enter into or has violated the terms of a last chance
agreement with the employer.
(c) It is no defense or excuse under this section that the
individual's separation resulted from alcohol use, marijuana use,
unlawful drug use, alcoholism or drug addiction.
(d) The department shall adopt rules to carry out the
provisions of this subsection.
(10) For the purposes of subsection (2) of this section, an
individual is considered to have committed a disqualifying act
when the individual voluntarily leaves work, fails to apply for
available suitable work when referred by the employment office or
the director or fails to accept suitable work when offered:
(a) Because the employer has or introduces a reasonable written
drug-free workplace policy that is consistent with subsection
(9)(a)(A) of this section;
(b) Because the employer requires the employee to consent to
present or future drug or alcohol tests under a reasonable
written policy that is consistent with subsection (9)(a)(A) of
this section;
(c) To avoid taking a drug or alcohol test under a reasonable
written policy that is consistent with subsection (9)(a)(A) of
this section; or
(d) To avoid meeting the requirements of a last chance
agreement.
(11) An individual may not be disqualified from receiving
benefits under subsection (2)(c) of this section and shall be
deemed laid off if the individual:
(a) Works under a collective bargaining agreement;
(b) Elects to be laid off when the employer has decided to lay
off employees; and
(c) Is placed on the referral list under the collective
bargaining agreement.
(12) An individual may not be disqualified from receiving
benefits under subsection (2)(c), (d) or (e) of this section or
be considered unavailable for purposes of ORS 657.155 if:
(a) The individual or a member of the individual's immediate
family is a victim of domestic violence, stalking or sexual
assault, or the individual believes that the individual or a
member of the individual's immediate family could become a victim
of domestic violence, stalking or sexual assault; and
(b) The individual leaves work, fails to apply for available
suitable work or fails to accept suitable work when offered in
order to protect the individual or a member of the individual's
immediate family from domestic violence, stalking or sexual
assault that the individual reasonably believes will occur as a
result of the individual's continued employment or acceptance of
work.
(13) For purposes of this section:
(a) 'Adulterant' means a substance that does not occur
naturally in urine, or that occurs naturally in urine but not at
the concentrations detected. 'Adulterant' includes but is not
limited to glutaraldehyde, nitrite concentrations above
physiological levels, hypochlorite or soap.
(b) 'Drug' means a controlled substance as defined in ORS
475.005.
(c) 'Last chance agreement' means a reasonable agreement:
(A) Between an employer and an employee who has violated the
employer's reasonable written policy, has engaged in drug or
alcohol use connected with work or has admitted to alcohol abuse,
marijuana use or unlawful drug use; and
(B) That permits the employee to return to work under
conditions that may require the employee to:
(i) Abstain from alcohol use, marijuana use and unlawful drug
use; and
(ii) Attend and comply with the requirements of a
rehabilitation or education program acceptable to the employer.
{ + (d) 'Reasonable written policy' includes a comprehensive
drug-free workplace program established consistent with sections
1 to 9 of this 2011 Act. + }
{ - (d) - } { + (e) + } An individual is 'under the
influence of intoxicants' when the level of alcohol, marijuana or
unlawful drugs present in the individual's body exceeds the
amount prescribed in a collective bargaining agreement, or the
amount prescribed in the employer's reasonable written policy if
there is no applicable collective bargaining agreement provision.
SECTION 12. ORS 659A.124 is amended to read:
659A.124. (1) Subject to the provisions of subsection (2) of
this section, the protections of ORS 659A.112 do not apply to any
job applicant or employee who is currently engaging in the
illegal use of drugs if the employer takes action based on that
conduct.
(2) The protections of ORS 659A.112 apply to the following
individuals:
(a) An individual who has successfully completed a supervised
drug rehabilitation program and is no longer engaging in the
illegal use of drugs or has otherwise been rehabilitated
successfully and is no longer engaging in the illegal use of
drugs.
(b) An individual who is participating in a supervised
rehabilitation program and is no longer engaging in the illegal
use of drugs.
(c) An individual who is erroneously regarded as engaging in
the illegal use of drugs.
(3) An employer may adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed
to ensure that an individual described in subsection (2)(a) or
(b) of this section is no longer engaging in the illegal use of
drugs.
{ + (4) For purposes of this section, an applicant or
employee must demonstrate that the applicant or employee has not
engaged in the illegal use of drugs for a period of no less than
30 days to be a person who is no longer engaging in the illegal
use of drugs. + }
SECTION 13. ORS 659A.127 is amended to read:
659A.127. ORS 659A.112 to 659A.139 do not affect the ability of
an employer to do any of the following:
(1) An employer may prohibit the transfer, offering, sale,
purchase or illegal use of drugs at the workplace by any
employee. An employer may prohibit possession of drugs except
for drugs prescribed by a licensed health care professional.
(2) An employer may prohibit the use of alcohol at the
workplace by any employee.
(3) An employer may require that employees not be under the
influence of alcohol or illegally used drugs at the
workplace. { + For purposes of this subsection, an employer may
enforce a policy that having any detectable level of alcohol or
illegally used drugs, or their metabolites, in an employee's
system is proof that the employee is under the influence of
alcohol or illegally used drugs. + }
(4) An employer may require that employees behave in
conformance with the requirements established under the federal
Drug-Free Workplace Act of 1988.
(5) An employer may hold an employee who engages in the illegal
use of drugs or who is an alcoholic to the same qualification
standards for employment, job performance and behavior to which
the employer holds other employees, even if the unsatisfactory
performance or behavior is related to the alcoholism of or the
illegal use of drugs by the employee.
(6) An employer may require that employees comply with all
federal and state statutes and regulations regarding alcohol and
the illegal use of drugs.
SECTION 14. ORS 475.309 is amended to read:
475.309. (1) Except as provided in ORS 475.316, 475.320 and
475.342, a person engaged in or assisting in the medical use of
marijuana is excepted from the criminal laws of the state for
possession, delivery or production of marijuana, aiding and
abetting another in the possession, delivery or production of
marijuana or any other criminal offense in which possession,
delivery or production of marijuana is an element if the
following conditions have been satisfied:
(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection (9) of this section,
is the designated primary caregiver of the cardholder or
applicant, or is the person responsible for a marijuana grow site
that is producing marijuana for the cardholder and is registered
under ORS 475.304; and
(b) The person who has a debilitating medical condition, the
person's primary caregiver and the person responsible for a
marijuana grow site that is producing marijuana for the
cardholder and is registered under ORS 475.304 are collectively
in possession of, delivering or producing marijuana for medical
use in amounts allowed under ORS 475.320.
(2) The Oregon Health Authority shall establish and maintain a
program for the issuance of registry identification cards to
persons who meet the requirements of this section. Except as
provided in subsection (3) of this section, the authority shall
issue a registry identification card to any person who pays a fee
in the amount established by the authority and provides the
following:
(a) Valid, written documentation from the person's attending
physician stating that the person has been diagnosed with a
debilitating medical condition and that the medical use of
marijuana may mitigate the symptoms or effects of the person's
debilitating medical condition;
(b) The name, address and date of birth of the person;
(c) The name, address and telephone number of the person's
attending physician;
(d) The name and address of the person's designated primary
caregiver, if the person has designated a primary caregiver at
the time of application; and
(e) A written statement that indicates whether the marijuana
used by the cardholder will be produced at a location where the
cardholder or designated primary caregiver is present or at
another location.
(3) The authority shall issue a registry identification card to
a person who is under 18 years of age if the person submits the
materials required under subsection (2) of this section, and the
custodial parent or legal guardian with responsibility for health
care decisions for the person under 18 years of age signs a
written statement that:
(a) The attending physician of the person under 18 years of age
has explained to that person and to the custodial parent or legal
guardian with responsibility for health care decisions for the
person under 18 years of age the possible risks and benefits of
the medical use of marijuana;
(b) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
consents to the use of marijuana by the person under 18 years of
age for medical purposes;
(c) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to serve as the designated primary caregiver for the
person under 18 years of age; and
(d) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to control the acquisition of marijuana and the dosage and
frequency of use by the person under 18 years of age.
(4) A person applying for a registry identification card
pursuant to this section may submit the information required in
this section to a county health department for transmittal to the
authority. A county health department that receives the
information pursuant to this subsection shall transmit the
information to the authority within five days of receipt of the
information. Information received by a county health department
pursuant to this subsection shall be confidential and not subject
to disclosure, except as required to transmit the information to
the authority.
(5)(a) The authority shall verify the information contained in
an application submitted pursuant to this section and shall
approve or deny an application within thirty days of receipt of
the application.
(b) In addition to the authority granted to the authority under
ORS 475.316 to deny an application, the authority may deny an
application for the following reasons:
(A) The applicant did not provide the information required
pursuant to this section to establish the applicant's
debilitating medical condition and to document the applicant's
consultation with an attending physician regarding the medical
use of marijuana in connection with such condition, as provided
in subsections (2) and (3) of this section;
(B) The authority determines that the information provided was
falsified; or
(C) The applicant has been prohibited by a court order from
obtaining a registry identification card.
(c) Denial of a registry identification card shall be
considered a final authority action, subject to judicial review.
Only the person whose application has been denied, or, in the
case of a person under the age of 18 years of age whose
application has been denied, the person's parent or legal
guardian, shall have standing to contest the authority's action.
(d) Any person whose application has been denied may not
reapply for six months from the date of the denial, unless so
authorized by the authority or a court of competent jurisdiction.
(6)(a) If the authority has verified the information submitted
pursuant to subsections (2) and (3) of this section and none of
the reasons for denial listed in subsection (5)(b) of this
section is applicable, the authority shall issue a serially
numbered registry identification card within five days of
verification of the information. The registry identification card
shall state:
(A) The cardholder's name, address and date of birth;
(B) The date of issuance and expiration date of the registry
identification card;
(C) The name and address of the person's designated primary
caregiver, if any;
(D) Whether the marijuana used by the cardholder will be
produced at a location where the cardholder or designated primary
caregiver is present or at another location; and
(E) Any other information that the authority may specify by
rule.
(b) When the person to whom the authority has issued a registry
identification card pursuant to this section has specified a
designated primary caregiver, the authority shall issue an
identification card to the designated primary caregiver. The
primary caregiver's registry identification card shall contain
the information provided in paragraph (a) of this subsection.
(7)(a) A person who possesses a registry identification card
shall:
(A) Notify the authority of any change in the person's name,
address, attending physician or designated primary caregiver.
(B) If applicable, notify the designated primary caregiver of
the cardholder and the person responsible for the marijuana grow
site that produces marijuana for the cardholder of any change in
status including, but not limited to:
(i) The assignment of another individual as the designated
primary caregiver of the cardholder;
(ii) The assignment of another individual as the person
responsible for a marijuana grow site producing marijuana for the
cardholder; or
(iii) The end of the eligibility of the cardholder to hold a
valid registry identification card.
(C) Annually submit to the authority:
(i) Updated written documentation from the cardholder's
attending physician of the person's debilitating medical
condition and that the medical use of marijuana may mitigate the
symptoms or effects of the person's debilitating medical
condition; and
(ii) The name of the person's designated primary caregiver if a
primary caregiver has been designated for the upcoming year.
(b) If a person who possesses a registry identification card
fails to comply with this subsection, the card shall be deemed
expired. If a registry identification card expires, the
identification card of any designated primary caregiver of the
cardholder shall also expire.
(8)(a) A person who possesses a registry identification card
pursuant to this section and who has been diagnosed by the
person's attending physician as no longer having a debilitating
medical condition or whose attending physician has determined
that the medical use of marijuana is contraindicated for the
person's debilitating medical condition shall return the registry
identification card and any other associated Oregon Medical
Marijuana Program cards to the authority within 30 calendar days
of notification of the diagnosis or notification of the
contraindication.
(b) If, due to circumstances beyond the control of the registry
identification cardholder, a cardholder is unable to obtain a
second medical opinion about the cardholder's continuing
eligibility to use medical marijuana before the 30-day period
specified in paragraph (a) of this subsection has expired, the
authority may grant the cardholder additional time to obtain a
second opinion before requiring the cardholder to return the
registry identification card and any associated cards.
(9) A person who has applied for a registry identification card
pursuant to this section but whose application has not yet been
approved or denied, and who is contacted by any law enforcement
officer in connection with the person's administration,
possession, delivery or production of marijuana for medical use
may provide to the law enforcement officer a copy of the written
documentation submitted to the authority pursuant to subsection
(2) or (3) of this section and proof of the date of mailing or
other transmission of the documentation to the authority. This
documentation shall have the same legal effect as a registry
identification card until such time as the person receives
notification that the application has been approved or denied.
(10) A registry identification cardholder has the primary
responsibility of notifying the primary caregiver and person
responsible for the marijuana grow site that produces marijuana
for the cardholder of any change in status of the cardholder. If
the authority is notified by the cardholder that a primary
caregiver or person responsible for a marijuana grow site has
changed, the authority shall notify the primary caregiver or the
person responsible for the marijuana grow site by mail at the
address of record confirming the change in status and informing
the caregiver or person that their card is no longer valid and
must be returned to the authority.
(11) The authority shall revoke the registry identification
card of a cardholder if a court has issued an order that
prohibits the cardholder from participating in the medical use of
marijuana or otherwise participating in the Oregon Medical
Marijuana Program under ORS 475.300 to 475.346. The cardholder
shall return the registry identification card to the authority
within seven calendar days of notification of the revocation. If
the cardholder is a patient, the patient shall return the
patient's card and all other associated Oregon Medical Marijuana
Program cards.
(12) The authority and employees and agents of the authority
acting within the course and scope of their employment are immune
from any civil liability that might be incurred or imposed for
the performance of or failure to perform duties required by this
section.
{ + (13) A person who has applied for a registry
identification card under this section and who is employed shall
notify the person's employer before engaging in the medical use
of marijuana. + }
SECTION 15. ORS 475.340 is amended to read:
475.340. Nothing in ORS 475.300 to 475.346 shall be construed
to require:
(1) A government medical assistance program or private health
insurer to reimburse a person for costs associated with the
medical use of marijuana; or
(2) An employer to { - accommodate - } { + make a workplace
accommodation under ORS 659A.103 to 659A.145 for + } the medical
use of marijuana { - in any workplace - } { + no matter where
that use occurs + }.
SECTION 16. { + The section captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
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