Preemployment Screening and Testing: Oregon
Federal law and guidance on this subject should be reviewed together with this section.
Author: Paula Barran, Barran Liebman LLP
- Oregon law restricts the acquisition and use of credit history in making employment decisions with limited exceptions. See Credit Checks.
- Oregon does not prohibit employers from considering criminal records (except expunged juvenile records) but the state does impose certain notice requirements. See Arrest and Conviction Records.
- State law restricts when employers can make criminal history inquiries during the hiring process. See Ban the Box.
- Where employees serve vulnerable populations, Oregon requires certain background checks. See Mandatory Background Checks.
- Preemployment drug testing is permissible, provided that certain procedures are followed. See Drug and Alcohol Testing Programs.
- The state has a medical marijuana program, but employers are not required to adjust their policies to accommodate users of the program. See Medical Marijuana.
- Oregon restricts the availability and regulates the timing of medical testing, and places limitations on breathalyzer, polygraph, psychological stress and genetic tests. See Testing Restrictions.
- The state imposes confidentiality requirements on tests for AIDS or HIV infection. See HIV/AIDS Testing.
- Portland has requirements pertaining to preemployment screening and testing. See Local Requirements.
In 2010, Oregon passed a law regulating the circumstances under which an employer could obtain and consider a job applicant's or employee's credit history information for use in connection with employment. +ORS § 659A.320.
With certain exceptions (federally insured banks or credit unions; employers that are required by state or federal law to use credit information, law enforcement officers, or where supported by job-related reasons) the statute prohibits employers from obtaining or using information for employment purposes that is contained in a job applicant's or employee's credit history.
If there are job-related reasons for obtaining or using the information, they must be "substantially job-related" and the reasons for use of the information must be disclosed to the applicant or employee in writing.
An applicant's credit history information is substantially job-related if:
- An essential job function requires access to financial information not customarily required in a retail transaction other than a loan or extension of credit (i.e., beyond check information, credit card numbers or debit card numbers); or
- The employer is required to obtain credit history information as a condition of bonding or insuring the employee.
Arrest and Conviction Records
Oregon imposes certain notice requirements on employers that want to consider the criminal records of prospective employees. However, employers are entitled to request information of any arrest less than one year old on which there has not yet been an acquittal or dismissal.
Criminal offender information is available from the Department of State Police. When information is requested, the department is required to provide prompt written notice of the request to the individual about whom the request is made. The department also is required to keep a record of all persons making inquiries and the names of the individuals about whom they are inquiring. +ORS § 181A.230; +ORS § 181A.245.
In addition, if this information is sought for employment purposes the employer must first advise the employee or prospective employee that such information might be sought and must confirm for the department that the individual has been advised that the information would be sought along with the manner in which the individual was advised. +ORS § 181A.230(2)(b).
Oregon law also prohibits the use of expunged juvenile records in making employment decisions. +ORS § 659A.030(1).
Criminal offender information must be provided for the following crimes:
- Any felony;
- Any misdemeanor or other offense that involves criminal sexual conduct; and
- Any crime involving a violation of the Uniform Controlled Substances Act.
Ban the Box
It is unlawful to exclude an applicant from an initial job interview solely because of a past criminal conviction. This means an Oregon employer may not require an applicant to disclose a past conviction on an employment application. And if no interview is conducted, an employer may not require an applicant to disclose a criminal conviction before a conditional job offer has been made. +2015 Bill Text H.B. 3025.
Exemptions are provided in the following situations:
- Federal, state or local law requires the consideration of an applicant's criminal history;
- The employer is a law enforcement agency or in the criminal justice system; and
- The employer is seeking a nonemployee volunteer.
The law does not directly specify which businesses are covered, so Oregon employers should assume it includes them unless one of the above exemptions applies. Employers that violate this criminal history law will be subject to fines of up to $1,000 per violation. However, the measure does not permit individuals to file lawsuits.
Portland has local requirements pertaining to criminal history. See Local Requirements.
Mandatory Background Checks
Background checks are required for employment serving vulnerable populations, including positions with:
- Adult foster homes;
- Direct care or services within a residential care facility or assisted living facility;
- Child care facilities; and
- Homecare and room and board facilities.
See +OAR 414-061-0000 et seq. for child care worker checks through the Child Care Division's Central Background Registry. Additional background checks related to licensure are required for nursing staff of long-term care facilities. +ORS § 441.679.
The Oregon Teacher Standards and Practices Commission may require the fingerprints of certain individuals for the purpose of requesting a state or nationwide criminal records check. This includes:
- Any person applying for an initial license as a teacher, administrator or personnel specialist if the person has not submitted to a criminal records check by the commission within the previous year;
- Any applicant seeking reinstatement of a license as a teacher, administrator or personnel specialist whose license has lapsed for at least three years;
- Any person applying for initial issuance of a school nurse certificate;
- Any person registering with the commission for student teaching, practicum or an internship as a teacher, administrator or personnel specialist if the person has not submitted to a criminal records check within the past three years; and
- Any applicant for initial issuance of a registration as a public charter school teacher or administrator.
In addition, the Department of Education may require the fingerprints of the following individuals for the purposes of conducting a state or nationwide criminal background check as a condition of employment:
- A school district or private school contractor, or contractor's employee, who has direct, unsupervised contact with students;
- A person newly hired by a school district or private school, whether part-time or full-time, in a capacity not described in +ORS § 342.223 above;
- A person who is a community college faculty member providing instruction at a kindergarten through grade 12 school site during the regular school day; and
- A person who is applying to be a public charter school employee.
Drug and Alcohol Testing Programs
Oregon law does not prohibit testing for illegal drugs, or testing for alcohol on a suspicion or cause basis. Testing for alcohol on a random basis probably would violate federal and state disability statutes prohibiting medical tests without business justification, since a test for alcohol is a medical test.
Statutes and regulations govern the manner in which such testing is done. Clinical laboratories that test for substances of abuse must be licensed and employ qualified technical personnel.+ORS § 438.435.
Initial tests by a special category laboratory used to deprive or deny any person of employment or a related benefit must be confirmed, and when the substance abuse test is for nonmedical employment or preemployment purposes, and a written request is provided, the test result shall be reported to the person from whom the specimen was originally obtained.
Tests must be confirmed ("When the specimen of a person tested for substances of abuse is submitted to the laboratory and the test result is positive, the laboratory shall perform a confirming test which has been designated by rule of the Oregon Health Authority as the best available technology for use to determine whether or not the substance of abuse identified by the first test is present in the specimen prior to reporting the test results").On-site screening is permitted, but where positive test results will cause denial of employment or other adverse action the specimen must be confirmed by a clinical laboratory or an equivalent out-of-state facility before the result is released.
State regulations applicable to testing laboratories appear at OAR § 333-024-0305 et seq. Employees retain their common law rights, and testing personnel can be sued in negligence. Ishikawa v. Delta Airlines, Inc., +343 F.3d 1129 (9th Cir. 2003), op. am. +350 F.3d 915 (9th Cir. 2003) (test was negligently performed and invalid because lab truncated results on validity testing so that employee's passing result was reported as failing and specimen deemed to have been substituted).
Oregon has a medical marijuana program. ORS § 475.300 to § 475.346. However, employers are not required to accommodate medical marijuana users. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Or 159 (2010).
In 2014, voters in Oregon approved a ballot measure to legalize the use of recreational marijuana use in small amounts. This measure does not affect the use of medicinal marijuana under existing state law. Effective July 1, 2015, this law enables adults 21 and over to possess up to eight ounces of marijuana at home, grow up to four marijuana plants per household and possess up to one ounce of marijuana in public.
However, the law does not impose any new limits on employers and does not prevent them from continuing to maintain a drug-free workplace policy. As with medical marijuana, employers will not be required to make an exception for a job applicant or employee who claims they need to use recreational marijuana to accommodate a disability.
Oregon's state law prohibiting discrimination against individuals with disabilities (+ORS § 659A.103 et seq) generally follows federal law on the availability and timing of medical testing.
A separate provision requires employers to pay the cost of medical examinations required as a condition of continued employment. There are exceptions for provisions authorized by collective bargaining agreements, tests paid for out of health and welfare programs, and tests required by state or federal statute or city or county ordinance (+ORS § 659A.306). In addition, Oregon places restrictions on the following tests:
- Breathalyzer tests;
- Polygraph tests;
- Psychological stress or brain-wage exams; and
- Genetic tests.
ORS § 659A.300 to § 659A.303.
Those tests cannot be required unless they fall within the permissible limits of the statute.
An employer may not require a job applicant or employee to submit to a polygraph unless that individual consents during the course of criminal or civil judicial processes to which the individual is a party or witness, or during the course of a criminal investigation conducted by law enforcement. +ORS § 659A.300(1); +ORS § 659A.300(3).
An Oregon employer may use a breathalyzer or blood alcohol content test for an applicant or employee who consents, or require the test where there are reasonable grounds to believe that individual is under the influence of intoxicating liquor. The employer must pay for the test. +ORS § 659A.300(1); +ORS § 659A.300(4).
A recent addition to Oregon law prohibits employers from seeking, obtaining or using genetic information of a job applicant or employee, or his or her immediate family, in order to distinguish between, discriminate against or restrict rights or benefits otherwise due or available to the applicant or employee. +ORS § 659A.303.
Oregon requires informed consent before any HIV test is performed. The consent form shall disclose the purpose of the test, and the persons to whom the results may be disclosed. +ORS § 433.045.
Oregon's statute includes provisions limiting the disclosure of the results of HIV/AIDS testing. The law states that regardless of the manner of receipt or source of information, a person may not disclose or be compelled to disclose the identity of any individual upon whom an HIV-related test is performed, or the results of such test, in a manner that permits the test subject's identification.
There are exceptions for public health or health care purposes, authorizations or complying with legal requirements. +ORS § 433.045.
Portland Ban the Box
Under Portland's "ban the box" law, employers with six or more employees who perform a majority of their work in the city may not inquire about or access a job applicant's criminal history before making a conditional employment offer. This ordinance also includes a ban on any criminal background checks until the conditional job offer phase.
A conditional offer of employment is defined as any offer to employ another that is conditioned solely on:
- The results of an employer's inquiry into, or gathering of information about, the applicant's criminal history; and/or
- Some other contingency expressly communicated to the applicant at the time of the offer.
If an applicant discloses his or her criminal history at any time before a conditional employment offer, the employer must disregard that information and take reasonable steps to prevent further disclosure or dissemination of the applicant's criminal history. In addition, an employer cannot base its decision on whether to make conditional employment offer upon any criminal history disclosed by the applicant.
It is not unlawful for an employer to withdraw a conditional offer of employment based upon an applicant's criminal history if an employer determines in good faith that a specific offense or conduct is job related for the position and consistent with business necessity. In making the determination of whether an applicant's criminal history is job related and consistent with business necessity an employer must make an individualized assessment of the following:
- The nature and gravity of the offense;
- The time that has elapsed since the criminal offense took place; and
- The nature of the employment sought.
After making a conditional offer, an employer is prohibited from considering the following:
- An arrest not leading to conviction or juvenile adjudication, except where a crime committed by an adult is unresolved or related charges or juvenile adjudication are still pending against an applicant;
- Convictions and related arrest history that have been judicially voided or expunged; or
- Any criminal history that have been resolved through the completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm to a person.
If an employer withdraws a conditional employment offer it must notify the applicant in writing of its decision and identify the specific item of the criminal history on which the decision was based and the source of the criminal history.
The city administrative rules define writing as in-person delivery of a paper document, delivery of such a paper document through the postal service or an equivalent private courier service, electronic delivery via e-mail, and any other means by which the applicant is provided with a permanent record of the notification. It does not include telephonic voicemail or text messaging.
The City of Portland, Office of the City Attorney created a model form for an employer to use to notify an applicant of the rescission of a conditional employment offer.
Limited exemptions are provided for jobs with law enforcement agencies; direct access to children; the elderly or the disabled; or those presenting public safety concerns.
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