(1) Except as provided in this section, it is an unlawful employment practice for any employer to subject, directly or indirectly, any employee or prospective employee to any breathalyzer test, polygraph examination, psychological stress test, genetic test or brain-wave test.
(2) As used in this section:
(a) “Breathalyzer test” means a test to detect the presence of alcohol in the body through the use of instrumentation or mechanical devices.
(b) “Genetic test” has the meaning given in ORS 192.531.
(c) “Polygraph examination or psychological stress test” means a test to detect deception or to verify the truth of statements through the use of instrumentation or mechanical devices.
(d) 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.
(3) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a polygraph examination to an individual, if the individual consents to the examination, during the course of criminal or civil judicial proceedings in which the individual is a party or witness or during the course of a criminal investigation conducted by a law enforcement agency, as defined in ORS 181.010, a district attorney or the Attorney General.
(4) Nothing in subsection (1) of this section shall be construed to prohibit the administration of a breathalyzer test to an individual if the individual consents to the test. 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.
(5) Subsection (1) of this section does not prohibit the administration of a genetic test to an individual if the individual or the individual’s representative grants informed consent in the manner provided by ORS 192.535, and the genetic test is administered solely to determine a bona fide occupational qualification. [Formerly 659.227]
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