# Oneida Business Committee (2024)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A21ae7c887414daaa

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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Oneida Nation

Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov

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ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA
Business Committee Conference Room - 2nd Floor Norbert Hill Center
February 7, 2024
9:00 a.m.
I.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved
1. January 17, 2024 LOC Meeting Minutes (pg. 2)

III.

Current Business
1. Drug and Alcohol Free Workplace Law Amendments (pg. 4)
2. Clean Air Policy Amendments (pg. 38)

IV.

New Submissions
1. Boards, Committees, and Commissions Law (pg. 59)

V.

Additions

VI.

Administrative Updates
1. Legislative Operating Committee Fiscal Year 2024 First Quarter Report (pg. 78)
2. E-Poll Results: Approval of the March 6, 2024 LOC Community Meeting Notice (pg. 86)

VII.

Executive Session

VIII. Recess/Adjourn

A good mind. A good heart. A strong fire.

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Oneida Nation

Oneida Business Committee
Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov

r'\

mooao
ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES
Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center
January 17, 2024
9:00 a.m.
Present: Jameson Wilson, Jennifer Webster, Kirby Metoxen, Jonas Hill
Excused: Marlon Skenandore
Others Present: Clorissa N. Leeman, Melinda Danforth, Carolyn Salutz, Grace Elliott, Keith
Doxtator, Brooke Doxtator, Maureen Perkins,
Others Present on Microsoft Teams: Jo Anne House, Katsitsiyo Danforth, Eric Boulanger, David
P. Jordan, Fawn Billie, Maureen Metoxen, Nicole Rommel, Derrick King, Mark Powless, Tavia
Charles, Todd Vandenheuvel, Kaylynn Gresham, Eric McLester, Rae Skenandore, Krystal John,
Michelle Tipple
I.

Call to Order and Approval of the Agenda
Jameson Wilson called the January 17, 2024, Legislative Operating Committee meeting to
order at 9:00 a.m.
Motion by Jennifer Webster approve the agenda; seconded by Jonas Hill. Motion carried
unanimously.

II.

Minutes to be Approved
1. January 3, 2024 LOC Meeting Minutes
Motion by Kirby Metoxen to approve the January 3, 2024, LOC meeting minutes; seconded
by Jennifer Webster. Motion carried unanimously.

III.

Current Business
1. Clean Air Policy Amendments
Motion by Jennifer Webster to approve the updated public comment review memorandum,
draft, and legislative analysis; seconded by Jonas Hill. Motion carried unanimously.
Motion by Jennifer Webster to approve the fiscal impact statement request memorandum
and forward to the Finance Department directing that a fiscal impact statement be prepared
and submitted to the LOC by January 31, 2024; seconded by Kirby Metoxen. Motion
carried unanimously.

A good mind. A good heart. A strong fire.

Legislative Operating Committee Meeting Minutes of January 17, 2024
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IV.

New Submissions
1. Short Term Rental Regulations
Motion by Jennifer Webster to add the Short-Term Rental law to the Active Files List with
Jonas Hill as the sponsor; seconded by Kirby Metoxen. Motion carried unanimously.

V.

Additions

VI.

Administrative Items

VII.

Executive Session

VIII. Adjourn
Motion by Jennifer Webster to adjourn at 9:21 a.m.; seconded by Kirby Metoxen. Motion
carried unanimously.

Legislative Operating Committee Meeting Minutes of January 17, 2024
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Oneida Nation

"'

Oneida Business Committee
Legislative Operating Committee

=DODDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

Legislative Operating Committee
February 7, 2024

Drug and Alcohol Free Workplace Law
Amendments
Submission Date: 9/7/22
LOC Sponsor: Kirby Metoxen and
Jonas Hill

Public Meeting: 2/15/23
Emergency Enacted: N/A

Summary: This item was carried over from last term. On August 30, 2022, the Legislative Operating

Committee received a request from the Human Resources Department to add the Drug and Alcohol Free
Workplace law amendments to its Active Files List. It is the policy of the Nation to establish a drug and
alcohol-free workplace program that balances respect for individuals with the need to maintain an alcohol
and drug-free environment. HRD indicated that with the Benton – Pre-Employment Drug Testing petition
currently pending – which requests to remove or lower THC from the pre-employment drug testing
requirements - they were directed by the Oneida Business Committee to work with the Oneida Law Office
on potential proposed language to address this petition. HRD is requesting that the LOC now add this
legislative item to the Active Files List so that the HRD can collaborate with the LOC on the consideration
of potential amendments moving forward. The Legislative Operating Committee originally added this item
to its Active Files List on September 7, 2022.
9/7/22 LOC:

Motion by Marie Summers to add the Drug and Alcohol Free Workplace law amendments to
the Active Files List with Kirby Metoxen as the sponsor; seconded by Kirby Metoxen. Motion
carried unanimously.

10/31/22:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Clorissa N. Leeman, Carolyn Salutz,
Grace Elliott, Carl Artman, Peggy Van Gheem, Todd Vandenheuvel, Matt Denny, Nic
Reynolds, Josh Cottrell, Wendy Alvarez, Louise Cornelius, Lucy Neville, Brenda MendollaBuckley, Fawn Rasmussen, Kristal Hill, Rhiannon Metoxen. The purpose of this work
meeting is to begin the consideration of potential amendments to the Drug and Alcohol Free
Workplace law by reviewing and discussing the options for amendments provided by the
Oneida Law Office.

11/15/22:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Jennifer Webster, Clorissa N.
Leeman, Carolyn Salutz, Grace Elliott, Carl Artman, Peggy Van Gheem, Todd Vandenheuvel,
Matt Denny, Nic Reynolds, Josh Cottrell, Wendy Alvarez, Lucy Neville, Lorna Skenandore,
Chad Fuss, Fawn Rasmussen, Mary Cornelissen, Kristal Hill. The purpose of this work
meeting was to continue the consideration of potential amendments to the Drug and Alcohol
Free Workplace law by deciding on an option for amendments provided by the Oneida Law
Office.

12/1/22:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Marie Cornelius, Daniel Guzman
King, Clorissa N. Leeman, Grace Elliott, Carolyn Salutz, Kristal Hill. This was a work

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meeting held through Microsoft Teams. The purpose of this work meeting was to review the
updated proposed language for the amendments, as well as the Waiver of Exemption of
Positive THC Test Results for Pre-Employment Drug Testing resolution.
12/7/2 LOC:

Motion by Jennifer Webster to approve the draft of the Drug and Alcohol Free Workplace law
amendments and direct that a legislative analysis be completed; seconded by Daniel Guzman
King. Motion carried unanimously.

12/21/22 LOC: Motion by Jennifer Webster to approve the legislative analysis of the Drug and Alcohol Free
Workplace law amendments; seconded by Daniel Guzman King. Motion carried unanimously.
1/4/23 LOC:

Motion by Jennifer Webster to approve the public meeting packet for the proposed
amendments to the Drug and Alcohol Free Workplace law and schedule a public meeting to
be held on February 15, 2022; seconded by Kirby Metoxen. Motion carried unanimously.

1/26/23:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Cornelius,
Daniel Guzman King, Clorissa N. Leeman, Mary Cornelissen, Lucy Neville, Fawn
Rasmussen, Grace Elliott, Kristal Hill, Peggy Van Gheem, Matt Denny, Whitney Wheelock,
Carl Artman, Wendy Alvarez, Lorna Skenandore, Nic Reynolds, Mark Powless, Todd Vanden
Heuvel, Carolyn Salutz. This was a work meeting held on Microsoft Teams. The purpose of
this work meeting was to review the resolution regarding which employee positions should
waive the proposed exemption for positive THC test results in pre-employment drug testing.

2/15/23:

Public Meeting Held. Present: Jennifer Webster, Kirby Metoxen, Clorissa N. Leeman, Grace
Elliott, Brooke Doxtator, Nancy Barton, Linda Dallas, Cathy L. Metoxen, Carol Silva, Dana
Thyssen, Jessica Vandekamp, Joy Salzwedel, Kristal Hill, Lucy Neville, Mark Powless, Mary
Graves, Mike Debraska, Monica Doxtator, Peggy Van Gheem, Robert Sundquist, Sidney
White, Carrie Lindsay, Kristen Jorgenson-Dann, Rachel Fitzpatrick, Stefanie Reinke, Sherrole
Benton. This public meeting was held in person in the Norbert Hill Center’s Business
Committee Conference Room as well as on Microsoft Teams. Six (6) individuals provided
oral comments during this public meeting.

2/22/23:

Public Comment Period Closed. Four (4) individuals provided written comments during the
public comment period.

10/4/23 LOC: Motion by Jennifer Webster to add the Drug and Alcohol Free Workplace Law Amendments
to the Active Files List with Kirby Metoxen and Jonas Hill as the sponsors; seconded by Jonas
Hill. Motion carried unanimously.
12/6/23:

Work Meeting. Present: Jameson Wilson, Jennifer Webster, Kirby Metoxen, Marlon
Skenandore, Jonas Hill, Clorissa Leeman, Grace Elliott, Maureen Perkins, Fawn Cottrell,
Kristal Hill. The purpose of this work meeting was to review the proposed amendments to the
Drug and Alcohol Free Workplace law that went to public meeting.

12/20/23 LOC: Motion by Jennifer Webster to accept the public comments and the public comment review
memorandum and defer to a work meeting for further consideration; seconded by Marlon
Skenandore. Motion carried unanimously.
12/20/23:

Work Meeting. Present. Jameson Wilson, Kirby Metoxen, Jennifer Webster, Jonas Hill, Marlon
Skenandore, Clorissa Leeman, Brandon Yellowbird Stevens, Grace Elliott, Maureen Perkins,
Kristal Hill, Fawn Cottrell. The purpose of this work meeting was to review and consider the
public comments received.

1/3/24 LOC:

Motion by Jennifer Webster to approve the updated public comment review memorandum,
draft, and legislative analysis; seconded by Jonas Hill. Motion carried unanimously.
A good mind. A good heart. A strong fire.

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Motion by Jennifer Webster to approve the fiscal impact statement request memorandum and
forward to the Finance Department directing that a fiscal impact statement be prepared and
submitted to the LOC by January 17, 2024; seconded by Jonas Hill. Motion carried
unanimously.
1/17/24:

Work Meeting. Present: Marlon Skenandore, Jennifer Webster, Jonas Hill, Kirby Metoxen
Clorissa Leeman, Carolyn Salutz (Microsoft Teams), Maureen Perkins (Microsoft Teams). The
purpose of this work meeting was for the LOC to review the adoption packet materials for the
Drug and Alcohol Free Workplace law amendments.

Next Steps:
 Approve the adoption packet for the Drug and Alcohol Free Workplace law amendments and
forward to the Oneida Business Committee for consideration.

A good mind. A good heart. A strong fire.

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ONEIDA

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Oneida Nation

=DODDDD=

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

TO:
FROM:
DATE:
RE:

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Oneida Business Committee
Legislative Operating Committee

Oneida Business Committee
Jameson Wilson, LOC Chairperson
February 14, 2024
Adoption of Amendments to the Drug and Alcohol Free Workplace Law

Please find the following attached backup documentation for your consideration of the adoption
of amendments to the Drug and Alcohol Free Workplace law:
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6.

Resolution: Amendments to the Drug and Alcohol Free Workplace Law
Statement of Effect: Amendments to the Drug and Alcohol Free Workplace Law
Drug and Alcohol Free Workplace Law Amendments Legislative Analysis
Drug and Alcohol Free Workplace Law Amendments Draft (Redline)
Drug and Alcohol Free Workplace Law Amendments Draft (Clean)
Drug and Alcohol Free Workplace Law Amendments Fiscal Impact Statement

Overview
Amendments to the Drug and Alcohol Free Workplace law are being sought to address exemptions
to the pre-employment drug testing of external applicants. Drug and Alcohol Free Workplace law
establishes a drug and alcohol-free workplace program that balances respect for individuals with
the need to maintain an alcohol and drug-free environment. [2 O.C. 202.1-2].
Currently, the Drug and Alcohol Free Workplace law provides that each employee, as a condition
of employment, shall participate in pre-employment, reasonable suspicion, and follow-up testing
upon the request of an appropriate authority, and that a negative test result is required for
employment eligibility. The proposed amendments to the Drug and Alcohol Free Workplace law
require that all external and internal applicants participate in pre-employment drug testing, and
that a negative drug test result shall be required for employment eligibility. [2 O.C. 202.8-4]. The
amendments to the Drug and Alcohol Free Workplace law further provide that an external
applicant’s confirmed positive THC test result shall be exempted from the requirement of a
negative drug test result for pre-employment eligibility unless prohibited by an external licensing
or grant requirement. [2 O.C. 202.8-4(a)]. Once an individual is hired by the Nation, the employee
is prohibited from the use of prohibited drugs and alcohol during working hours, when on-call,
and when operating a vehicle owned by the Nation or a vehicle rented by the Nation. [2 O.C.
202.4-2]. All employees of the Nation are required to participate in reasonable suspicion and
follow-up testing upon the request of an appropriate authority. [2 O.C. 202.8-5]. A negative test
result is required for unimpeded employment eligibility. Id.
The Legislative Operating Committee developed the proposed amendments to the Drug and
Alcohol Free Workplace law through collaboration with representatives from the Oneida Law
Office, Human Resources Department, Gaming, and Employee Health Nursing. The Legislative
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Operating Committee held seven (7) work meetings on the development of the amendments to the
Drug and Alcohol Free Workplace law.
The development of the amendments to the Drug and Alcohol Free Workplace law complies with
all processes and procedures required by the Legislative Procedures Act, including the
development of a legislative analysis, a fiscal analysis, and the opportunity for public review
during a public meeting and public comment period. [1 O.C. 109.6, 109.7, 109.8].
A public meeting on the proposed amendments to the Drug and Alcohol Free Workplace law was
held on February 15, 2023. Six (6) individuals provided oral comments during the public meeting.
The public comment period was then held open until February 22, 2023. Four (4) individuals
provided written comments during the public comment period. The Legislative Operating
Committee reviewed and considered the public comments received on December 20, 2023, and
any changes have been incorporated into this draft.
The amendments to the Drug and Alcohol Free Workplace law will become effective on March 4,
2024.
Requested Action
Adopt the Resolution: Amendments to the Drug and Alcohol Free Workplace Law

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A good mind. A good heart. A strong fire.

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ONEIDA

Oneida Nation

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Post Office Box 365

Phone: (920)869-2214

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Oneida, WI 54155

BC Resolution #
Amendments to the Drug and Alcohol Free Workplace Law
WHEREAS,

the Oneida Nation is a federally recognized Indian government and a treaty tribe
recognized by the laws of the United States of America; and

WHEREAS,

the Oneida General Tribal Council is the governing body of the Oneida Nation; and

WHEREAS,

the Oneida Business Committee has been delegated the authority of Article IV, Section 1,
of the Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS,

the Drug and Alcohol Free Workplace law (“the Law”) was adopted by the Oneida Business
Committee through resolution BC-10-25-95-A and amended by resolutions BC-10-20-99A, BC-12-05-07-B, BC-12-11-13-F, and BC-04-12-17-C; and

WHEREAS,

it is the policy of the Nation to establish a drug and alcohol-free workplace program that
balances respect for individuals with the need to maintain an alcohol and drug-free
environment; and

WHEREAS

currently, the Law provides that each employee, as a condition of employment, shall
participate in pre-employment, reasonable suspicion, and follow-up testing upon the
request of an appropriate authority, and that a negative test result is required for
employment eligibility; and

WHEREAS,

the proposed amendments to the Law require that all external and internal applicants
participate in pre-employment drug testing, and that a negative drug test result shall be
required for employment eligibility; and

WHEREAS,

the amendments to the Law further provide that an external applicant’s confirmed positive
THC test result shall be exempted from the requirement of a negative drug test result for
pre-employment eligibility unless prohibited by an external licensing or grant requirement;
and

WHEREAS,

once an individual is hired by the Nation, the employee is prohibited from the use of
prohibited drugs and alcohol during working hours, when on-call, and when operating a
vehicle owned by the Nation or a vehicle rented by the Nation; and

WHEREAS,

all employees of the Nation are required to participate in reasonable suspicion and followup testing upon the request of an appropriate authority, and a negative test result is
required for unimpeded employment eligibility; and

WHEREAS,

the Legislative Operating Committee developed the proposed amendments to the Law
through collaboration with representatives from the Oneida Law Office, Human Resources
Department, Gaming, and Employee Health Nursing; and

WHEREAS,

in accordance with the Legislative Procedures Act a legislative analysis and fiscal impact
statement were completed for the proposed amendments to the Law; and

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BC Resolution _____________
Amendments to the Drug and Alcohol Free Workplace Law
Page 2 of 2

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WHEREAS,

a public meeting for the proposed amendments to this Law was held on February 15,
2023,with six (6) individuals providing oral comments, and the public comment period for
the amendments to this Law was held open until February 22, 2023, with four (4) individuals
providing written comments; and

WHEREAS,

the Legislative Operating Committee reviewed and considered the public comments
received on December 20, 2023, and any changes have been incorporated into this draft;
and

NOW THEREFORE BE IT RESOLVED, the Oneida Business Committee hereby adopts the amendments
to the Drug and Alcohol Free Workplace law which shall become effective on March 4, 2024.

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Oneida Nation

Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov

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ONEIDA

Statement of Effect
Amendments to the Drug and Alcohol Free Workplace Law
Summary
This resolution adopts amendments to the Drug and Alcohol Free Workplace law to provide that
an external applicant’s confirmed positive THC test result shall be exempted from the requirement
of a negative drug test result for pre-employment eligibility unless prohibited by an external
licensing or grant requirement.
Submitted by: Clorissa N. Leeman, Senior Staff Attorney, Legislative Reference Office
Date: January 15, 2024
Analysis by the Legislative Reference Office
This resolution adopts amendments to the Drug and Alcohol Free Workplace law. The Drug and
Alcohol Free Workplace law establishes a drug and alcohol-free workplace program that balances
respect for individuals with the need to maintain an alcohol and drug-free environment. [2 O.C.
202.1-2]. The amendments to the Drug and Alcohol Free Workplace law will provide that an
external applicant’s confirmed positive THC test result shall be exempted from the requirement of
a negative drug test result for pre-employment eligibility unless prohibited by an external licensing
or grant requirement.
Adoption of any legislation is required to comply with the Legislative Procedures Act (“the LPA”),
which was adopted by the General Tribal Council through resolution GTC-01-07-13-A for the
purpose of providing a standardized process for the adoption of laws of the Nation. [1 O.C. 109.11]. The Drug and Alcohol Free Workplace law amendments complied with all processes and
procedures required by the LPA, including the development of a legislative analysis, a fiscal
analysis, and the opportunity for public review during a public meeting and public comment
period. [1 O.C. 109.6, 109.7, 109.8].
A public meeting on the proposed amendments to the Drug and Alcohol Free Workplace law was
held on February 15, 2023. Six (6) individuals provided oral comments during the public meeting.
The public comment period was then held open until February 22, 2023. Four (4) individuals
provided written comments during the public comment period. The Legislative Operating
Committee reviewed and considered the public comments received on December 20, 2023, and
any changes have been incorporated into this draft.
The amendments to the Drug and Alcohol Free Workplace law will become effective on March 4,
2024.
Conclusion
Adoption of this resolution would not conflict with any of the Nation’s laws.

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Analysis to Draft 2
2024 02 14

DRUG AND ALCOHOL FREE WORKPLACE
LAW AMENDMENTS
LEGISLATIVE ANALYSIS
SECTION 1. EXECUTIVE SUMMARY
Intent of the
Proposed Amendments
Purpose
Affected Entities
Public Meeting
Fiscal Impact

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Analysis by the Legislative Reference Office
Provide that an external applicant’s confirmed positive THC test result shall
be exempted from the requirement of a negative drug test result for preemployment eligibility unless prohibited by an external licensing or grant
requirement. [2 O.C. 202.8-4(a)].
The purpose of this law is to establish a drug and alcohol-free workplace
program that balances respect for individuals with the need to maintain an
alcohol and drug-free environment. [2 O.C. 202.1-2].
Human Resources Department, Oneida Nation employees.
A public meeting was held on February 15, 2023. The public comment period
was held open until February 22, 2023.
A fiscal impact statement was provided by the Finance Administration on
January 16, 2024.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. Background. The Drug and Alcohol Free Workplace law was adopted by the Oneida Business
Committee in 1994 through resolution BC-10-25-95-A and then amended through resolutions BC-1020-99-A, BC-12-05-07-B, BC-12-11-13-F, and BC-04-12-17-C. The purpose of the Drug and Alcohol
Free Workplace law is to establish a drug and alcohol-free workplace program that balances respect for
individuals with the need to maintain an alcohol and drug-free environment. [2 O.C. 202.1-2].
B. Request for Amendments. On August 30, 2022, the Legislative Operating Committee received a
request from the Human Resources Department to add the Drug and Alcohol Free Workplace law
amendments to its Active Files List. The Human Resources Department indicated that with the Benton
– Pre-Employment Drug Testing petition currently pending – which requests to remove THC from the
pre-employment drug testing requirements, they were directed by the Oneida Business Committee to
work with the Oneida Law Office on potential proposed language to address this petition. The
Legislative Operating Committee added this item to its Active Files List on September 7, 2022.

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SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of the
amendments to the Law and this legislative analysis:
 Oneida Law Office;
 Human Resources Department;
 Gaming; and
 Employee Health Nursing.
B. The following laws were reviewed in the drafting of this analysis:
 Drug and Alcohol Free Workplace law;

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

Oneida Personnel Policies and Procedures.

SECTION 4. PROCESS

A. The development of the proposed amendments to the Drug and Alcohol Free Workplace law complies
with the process set forth in the Legislative Procedures Act (LPA).
 On September 7, 2022, the Legislative Operating Committee added the Law to its Active Files
List.
 On December 7, 2022, the Legislative Operating Committee approved the draft of the proposed
amendments to the Law and directed that a legislative analysis be developed.
 On December 21, 2022, the Legislative Operating Committee approved the legislative analysis.
 On January 4, 2023, the Legislative Operating Committee approved the public meeting packet
for the proposed amendments to the Drug and Alcohol Free Workplace law and scheduled a
public meeting to be held on February 15, 2022.
 On February 15, 2023, the public meeting was held in the Norbert Hill Center’s Business
Committee Conference Room as well as on Microsoft Teams. Six (6) individuals provided oral
comments during this public meeting.
 On February 22, 2023, the public comment period closed. Four (4) individuals provided written
comments during the public comment period.
 On October 4, 2023 the Legislative Operating Committee elected for the 2023-2026 legislative
term added the Drug and Alcohol Free Workplace Law Amendments to the Active Files List
with Kirby Metoxen and Jonas Hill as the sponsors.
 On December 20, 2023, the Legislative Operating Committee accepted the public comments
and the public comment review memorandum and defer to a work meeting for further
consideration. The Legislative Operating Committee then reviewed and considered these
public comments that same day.
 On January 3, 2024, the Legislative Operating Committee approved the updated public
comment review memorandum, draft, and legislative analysis; and also approved the fiscal
impact statement request memorandum and forwarded the materials to the Finance Department
directing that a fiscal impact statement be prepared and submitted to the LOC by January 17,
2024.
 On January 16, 2024, the Finance Administration provided the fiscal impact statement to the
Legislative Operating Committee.
B. At the time this legislative analysis was developed the following work meetings had been held
regarding the development of the amendments to this Law:
 October 31, 2022: LOC work meeting with the Oneida Law Office, Human Resources
Department, and Gaming.
 November 15, 2022: LOC work meeting with the Oneida Law Office, Human Resources
Department, Employee Health Nursing, and Gaming.
 December 1, 2022: LOC work session.
 January 26, 2023: LOC work meeting with Oneida Law Office, Human Resources
Department, Gaming, and the General Manager.
 December 6, 2023: LOC work session.
 December 20, 2023: LOC work session.
 January 17, 2024: LOC work session.

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Analysis to Draft 2
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SECTION 5. CONTENTS OF THE LEGISLATION

A. Pre-Employment Drug Testing. Currently, the Law provides that each employee, as a condition of
employment, shall participate in pre-employment, reasonable suspicion, and follow-up testing upon the
request of an appropriate authority, and that a negative test result is required for employment eligibility.
The proposed amendments focus specifically on pre-employment drug testing and how positive THC
test results are addressed by the Nation. The proposed amendments to the Law require that all external
and internal applicants participate in pre-employment drug testing, and that a negative drug test result
shall be required for employment eligibility. [2 O.C. 202.8-4]. The Law then further provides that an
external applicant’s confirmed positive THC test result shall be exempted from the requirement of a
negative drug test result for employment eligibility unless prohibited by an external licensing or grant
requirement. [2 O.C. 202.8-4(a)].
 Effect. The proposed amendments to the Law allow an individual who is seeking employment with
the Nation to still be eligible to be hired if the individual tests positive for THC in most situations,
unless prohibited by an external licensing or grant requirement. When developing these
amendments, the Legislative Operating Committee had great discussion regarding the fact that an
external applicant’s positive THC test result is not indicative of an individual’s intent to continue
the use of marijuana once they are hired as an employee of the Nation and the use of drugs is
prohibited. The Legislative Operating Committee understands that external applicants may come
from, or may have visited, states where the use of marijuana has been legalized. As of April 24,
2023, thirty-eight (38) states, three (3) territories and the District of Columbia allow the medical
use of cannabis products; while as of November 8, 2023, twenty-four (24) states, two (2) territories
and the District of Columbia have enacted measures to regulate cannabis for non-medical adult
recreational use. 1 The exemption for positive THC test results applies only to external applicants
during pre-employment drug testing. Once an individual is hired by the Nation, the employee is
prohibited from the use of prohibited drugs and alcohol during working hours, when on-call, and
when operating a vehicle owned by the Nation or a vehicle rented by the Nation. [2 O.C. 202.4-2].
All employees of the Nation are required to participate in reasonable suspicion and follow-up
testing upon the request of an appropriate authority. [2 O.C. 202.8-5]. A negative test result is
required for unimpeded employment eligibility. Id.

SECTION 6. EXISTING LEGISLATION

A. Related Legislation. The following laws of the Nation are related to the proposed amendments to the
Law:
 Oneida Personnel Policies and Procedures. The purpose of the Oneida Personnel Policies and
Procedures is to provide for the Nation’s employee related policies and procedures including
recruitment, selection, compensation and benefits, employee relations, safety and health, program
and enterprise rules and regulations, and record keeping.

Information found on the Nation Conference of State Legislatures website at https://www.ncsl.org/health/statemedical-cannabis-laws#:~:text=Non%2DMedical%2FAdult%2DUse,medical%20adult%20(recreational)%20use.

1

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 Section V.D.3 of the Oneida Personnel Policies and Procedures provides that the Drug
and Alcohol Free Workplace Policy shall govern disciplinary actions warranting
termination for drug and alcohol related violations.

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SECTION 7. OTHER CONSIDERATIONS
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A. Fiscal Impact. Under the Legislative Procedures Act, a fiscal impact statement is required for all
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legislation except emergency legislation [1 O.C. 109.6-1]. Oneida Business Committee resolution BC113
10-28-20-A titled, “Further Interpretation of ‘Fiscal Impact Statement’ in the Legislative Procedures
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Act,” provides further clarification on who the Legislative Operating Committee may direct complete
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a fiscal impact statement at various stages of the legislative process, as well as timeframes for
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completing the fiscal impact statement.
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 Conclusion. A fiscal impact statement was provided by the Finance Administration on January 16,
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2024.
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Title 2. Employment – Chapter 202
DRUG AND ALCOHOL FREE WORKPLACE
202.1. Purpose and Policy
202.2. Adoption, Amendment, Repeal
202.3. Definitions
202.4. Application
202.5. Shared Responsibility
202.6. Prohibited Behavior
202.7. Reasonable Suspicion
202.8. Drug and Alcohol Testing

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202.9. Refusal to Test
202.10. Reasonable Suspicion Testing Waiting Period
202.11. Consequences for Prohibited Behavior
202.12. Re-hire
202.13. Other Potential Consequences
202.14. Confidentiality
202.15. Communication

202.1. Purpose and Policy
202.1-1. Purpose. The Nation is committed to protecting the safety, health and well-being of all
employees, and other individuals in the workplace. The Nation recognizes that alcohol abuse and
drug use pose a significant health and safety threat to our customers and other employees. The Nation
also recognizes that alcohol and drug abuse and addiction are treatable illnesses. The Nation realizes
that early intervention and support may improve the success of rehabilitation.
202.1-2. Policy. It is the policy of the Nation to establish a drug and alcohol-free workplace program
that balances respect for individuals with the need to maintain an alcohol and drug-free environment.
The Nation encourages employees to voluntarily seek help for their personal drug and alcoholrelated problems.
202.2. Adoption, Amendment, Repeal
202.2-1. This law was adopted by the Oneida Business Committee by resolution BC-10-25-95-A
and amended by resolutions BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F and, BC-04-12-17C., and BC-__-__-__-__.
202.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the
Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.
202.2-3. Should a provision of this law or the application thereof to any person or circumstances be
held as invalid, such invalidity shall not affect other provisions of this law which are considered to
have legal force without the invalid portions.
202.2-4. In the event of a conflict between a provision of this law and a provision of another law,
the provisions of this law shall control.
202.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.
202.3. Definitions
202.3-1. This section shall govern the definitions of words or phrases as used within this law. All
words not defined herein shall be used in their ordinary and everyday sense.
(a) “Appropriate authority” means the Human Resources Department hiring representative,
immediate supervisor, EHN, MRO, and/or ONEAP who requests the drug and/or alcohol
testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing.
(b) “Business day” means Monday through Friday from 8:00am-4:30pm, excluding holidays
recognized by the Nation.
(c) “Confirmed positive test result” means a lab-confirmed drug test that is verified by the
MRO that exceeds the cut-off levels established by this law (levels established by the United
States Department of Health and Human Services), confirmed saliva testing, confirmed
evidential breath alcohol test results of 0.02 or greater; and/or refusal to test.
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(d) “EHN” means the Oneida Employee Health Nursing Department.
(e) “Employee” means any individual who is employed by the Nation and is subject to the
direction and control of the Nation with respect to the material details of the work performed,
or who has the status of an employee under the usual common law rules applicable to
determining the employer-employee relationship. “Employee” includes, but is not limited
to; an individual employed by any program or enterprise of the Nation, but does not include
elected or appointed officials, or individuals employed by a Tribally Chartered Corporation.
For purposes of this law, individuals employed under an employment contract as a limited
term employee are employees of the Nation, not consultants.
(f) “External applicant” means a person who is applying for a position and not currently
employed by the Nation.
(g) “HRD” means the Human Resources Department and/or representatives performing
Human Resources functions applicable to this law.
(h) “Internal applicant” means a person who is applying for a position who is currently
employed by the Nation, this includes those employed under a temporary status.
(i) “MRO” means Medical Review Officer who is a licensed physician who is responsible
for receiving and reviewing laboratory test results generated by an employer’s drug testing
program and evaluating medical explanations for certain drug test results.
(j) “Nation” means the Oneida Nation.
(k) “NHTSA” means the National Highway Traffic Safety Administration.
(l) “ONEAP” means the Oneida Nation Employee Assistance Program which is a
professional counseling program staffed by clinical social workers licensed by the State of
Wisconsin which offers services to the Nation’s employees and family members.
(m) “Prohibited drug(s)” means marijuana, cocaine, opiates, amphetamines, phencyclidine
(PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance
included in Schedules I through V, as defined by Section 812 of Title 21 of the United States
Code. This also includes prescription medication or over-the-counter medicine used in an
unauthorized or unlawful manner.
(n) “Return-to-Work Agreement” means an agreement, developed by an ONEAP counselor
and signed by the employee and the ONEAP counselor, and the referring supervisor, which
sets out the actions the employee needs to complete in order to return to work and remain
employed.
(o) “SAMHSA” means the United States Department of Health and Human Services,
Substance Abuse and Mental Health Services Administration.
(p) “Supervisor” means the immediate supervisor, or person who has taken on the role of
supervisor due to an absence that is responsible for performance review, corrective action,
and day-to-day assignments of duties.
(q) “Work-related accident” means an unexpected event involving an employee that occurs
in the employee’s working environment or during an activity related to work, that:
(1) results in an injury to the employee or another person that may require medical
intervention by a police officer or emergency medical technician, or treatment at a
medical facility,
(2) results in death of the employee or another person, or
(3) involves any property damage.
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202.4. Application
202.4-1. This law applies to all applicants for employment, whether external or internal, and all
employees during working hours, when on-call, and when operating a vehicle owned by the Nation
or a vehicle rented by the Nation.
202.4-2. An employee is prohibited from the use of prohibited drugs and alcohol during working
hours, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the
Nation.
202.4-3. An employee is prohibited from the use of intoxicants while on official business travel
while the conference or meeting is in session.
202.4-4. An employee is not exempted from this law if they travel to another state, territory or
country where the use of certain drugs is legal.
202.5. Shared Responsibility
202.5-1. A safe and productive drug and alcohol free workplace is achieved through cooperation
and shared responsibility between the employer and an employee.
202.5-2. Employee. It is the employee’s responsibility to:
(a) Be free from the effects of prohibited drugs, and/or alcohol during working hours, and/or
when scheduled to be on-call.
(b) Refrain from the unlawful manufacture, distribution, dispensation or possession of any
prohibited drugs while working.
(c) Comply with drug and alcohol testing if directed to do so upon the request of an
appropriate authority.
(d) Confidentially report suspicious behavior of an employee immediately to the supervisor
of the employee in question.
(e) Cooperate with the requests made by EHN and the MRO. The employee shall return the
call of the MRO within twenty-four (24) hours of the call being made to the employee. An
employee who fails to cooperate and does not contact the MRO within twenty-four (24) hours
of receiving contact shall not receive back pay for any time between the date the MRO placed
the call until the time the employee does return the call of the MRO.
(f) Sign a consent form to be tested for alcohol and drugs when requested by an appropriate
authority.
(g) Provide the appropriate information to EHN in the event a medical condition prevents
the employee from properly completing drug and alcohol testing so alternative drug and
alcohol testing measures can be taken by EHN.
202.5-3. Supervisor. It is the supervisor’s responsibility to:
(a) Be familiar with this law and any related policies and procedures.
(b) Investigate reported suspicious behaviors while maintaining the confidentiality of the
person who reported the suspicious behavior.
(c) Promptly intervene with an employee who is believed to be under the influence of
prohibited drugs and/or alcohol.
(d) Monitor the employee under the influence of prescription and/or over-the-counter
medications that could compromise the safety of the employee, fellow employees, or the
public.
(e) Send the employee through the contracted transportation service for reasonable suspicion
drug and alcohol testing.
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(f) Take appropriate action as outlined by this law.
(g) Sign the Return-to-Work Agreement along with the employee and ONEAP counselor
that was developed by ONEAP.
(h) Send a copy of the consent to submit to drug and alcohol testing form signed by the
employee to EHN.
202.5-4. Supervisor and Employee. A supervisor or an employee that fails to adhere to the
responsibilities of the supervisor or employee under this law may be subject to disciplinary action
or other consequences as explained in section 202.13.
202.5-5. Off-duty Use of Prohibited Drugs or Alcohol. Off-duty use of prohibited drugs or alcohol
may result in continued impairment during on-duty hours, which shall then constitute a violation of
this law. It is the employee’s responsibility to understand the consequences of off-duty use, and take
steps to avoid the possibility of on-duty impairment. An employee who is called in for emergency
or unplanned work, excluding those on-call, and has been using prohibited drugs or drinking
alcoholic beverages prior to such a call, shall inform the employee’s supervisor they cannot report,
and shall continue to decline to report until the effects of the prohibited drugs or alcohol have left
the employee’s system. Such refusal to report shall not be viewed as improper, and disciplinary
action shall not arise from such refusal.
202.5-6. Use of Controlled Substances That May Affect Safety or Performance. An employee who
is taking or is under the influence of any controlled substances during working hours, including
prescription medication or over the counter medication, which may affect the employee’s job
performance or safety of the employee, fellow employees, public, or assets of the Nation have the
following obligations:
(a) The employee shall notify the employee’s immediate supervisor about the use of the
substance and possible work-related effects prior to commencing work.
(b) Upon request, the employee may be required to obtain a written statement of any work
restrictions or impact on performance or safety relating to the legal substances from the
employee’s physician or pharmacist.
(c) An employee shall not sell or share his or her prescribed medications with any other
person, and shall not take medications that are prescribed to another person.
(d) It may be necessary for the employee’s supervisor, area manager or EHN to consult with
the employee’s personal physician, pharmacist or an MRO, with the employee’s approval
or written authorization, to determine if the medication might impact the employee’s
ability to perform the employee’s job, or pose a hazard to other employees or to the
general public.
(e) The employee’s duties may be temporarily modified for up to one hundred eighty (180)
days. Any modification of duties shall result in the appropriate modification of pay as
established by the Human Resources Department.
202.6. Prohibited Behavior
202.6-1. An applicant or employee of the Nation is in violation of this law if he or she:
(a) Uses, possesses, and/or sells prohibited drugs, or is under the influence of prohibited
drugs or alcohol while on duty. Notwithstanding section 202.11, any employee who is
caught using, possessing or selling prohibited drugs shall be immediately terminated from
employment with the Nation.
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(b) Fails to inform his or her supervisor of being under the influence of prescription
medication and/or over-the-counter medication(s) which may affect the employee’s job
performance or safety of the employee, fellow employees, public, or assets of the Nation.
(c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses prescription
medications.
(d) Refuses to test.
(e) Has a confirmed positive test result after completing a drug and/or alcohol test through
EHN or a medical facility, or has a confirmatory test come back as positive.
202.7. Reasonable Suspicion
202.7-1. Establishing reasonable suspicion begins when the supervisor becomes aware either by
personal observation and/or secondary reported observation that an employee may be under the
influence of drugs and/or alcohol: this may include seeing or receiving a report that the employee
has taken or possess prohibited drugs or prescription medication that is not specifically prescribed
to that employee. In order to make a reasonable suspicion determination, the supervisor shall
evaluate the following:
(a) Specific observations concerning appearance, behavior, speech, or body odors of the
employee consistent with possible drug use or alcohol misuse.
(b) The observations may include indications of the chronic and withdrawal effects of
prohibited drugs or alcohol.
202.7-2. The supervisor shall document his or her observations and discuss the matter with the
employee. During this discussion, the supervisor may ask the employee for proof of a prescription.
The employee shall comply with this request. If after a discussion with the employee, the supervisor
continues to suspect the employee may currently still be under the influence or reasonable suspicion
is otherwise established, the supervisor shall refer the employee for reasonable suspicion drug and
alcohol testing.
202.7-3. A supervisor’s decision made in regard to the reasonable suspicion drug and alcohol testing
of an employee is final. An employee shall not appeal or challenge a supervisor’s determination for
reasonable suspicion drug and alcohol testing.
202.8. Drug and Alcohol Testing
202.8-1. Drug and alcohol tests are forensic in nature, meaning they are performed to formalize
conditions of employment as described in this law. To ensure the accuracy and fairness of this law,
all drug and alcohol testing shall be conducted according to SAMHSA guidelines for Federal
Workplace Drug Testing Programs.
202.8-2. EHN or its designee shall use Federal Drug Administration approved urine tests and
NHTSA certified evidential breath testing devices or NHTSA certified saliva-screening devices,
operated by technicians whose training terminology, procedures, methods, equipment, forms, and
quality assurance comply with best practices.
(a) Confirmation drug testing done on urine specimens shall be conducted by a laboratory
which is certified by the U.S. Department of Health and Human Services using its
confirmation methods and established cut-off levels. Laboratory-confirmed results shall
undergo the verification process by a MRO.
(b) Confirmation breath alcohol testing shall be performed using an NHTSA certified
evidential breath testing device.
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(c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA
certified saliva test.
202.8-3. If an employee is involved in a work-related accident, he or she shall immediately inform
his or her supervisor of the accident.
202.8-4. Each employee, as a condition of employment,All external and internal applicants shall
participate in pre-employment, reasonable suspicion, and follow-up drug testing upon the request of
an appropriate authority.. A negative drug test result shall be required for employment eligibility.
(a) Exemption for Positive THC Test Result. An external applicant’s confirmed positive THC
test result shall be exempted from the requirement of a negative drug test result for
employment eligibility unless prohibited by an external licensing or grant requirement.
202.8-5. Each employee shall participate in reasonable suspicion and follow-up testing upon the
request of an appropriate authority. A negative test result is required for unimpeded employment
eligibility.
202.8-6. Dilution of Test Results. In cases where a drug test result is diluted, a positive dilute of the
test result requires that the applicant or employee shall be given a confirmed positive test result,
while a negative dilute of the test result requires retesting. EHN shall notify the applicant or
employee of the required retesting.
(a) If the re-test results in a negative-dilute, the applicant or employee shall be given a
negative test result.
(b) If the re-test results in a positive-dilute, then the applicant or employee shall be given a
positive test result.
202.9. Refusal to Test
202.9-1. Refusal to test is prohibited behavior as defined in section 202.6. Refusal to test carries
the same consequences as a confirmed positive test result. Examples of refusal to test include, but
are not limited to:
(a) Substituting, adulterating (falsifying), or diluting the specimen.
(b) Refusal to sign the required forms.
(c) Refusal to cooperate in the testing process in such a way that prevents completion of
accurate testing and as directed by the collector.
(d) Failing to remain at the testing site until the testing process is complete.
(e) Providing an insufficient sample of urine or breath.
(f) Failing to test or to re-test.
(g) Failing to appear within two (2) hours after an order or request is made for testing or retesting.
(h) Behaving in a confrontational or discourteous manner that disrupts the collection process.
202.10. Reasonable Suspicion Testing Waiting Period
202.10-1. This section applies only to current employees who meet the reasonable suspicion
standard. It does not apply to applicants of the Nation.
202.10-2 During drug and alcohol testing for reasonable suspicion, an employee shall be
immediately removed from duty without pay at the time of initiation of the reasonable suspicion
drug and alcohol testing and specimen collection until the employer is notified by EHN of negative
results on both the drug and alcohol tests, or MRO-verified negative test results.
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202.10-3. When confirmation of test results are made available to the employer, the supervisor shall
notify the employee by telephone and by certified mail using the contact information provided by
the employee. The notice to the employee shall identify a reinstatement date if the test was
confirmed negative, or applicable consequences if the test was confirmed positive. If the employee
is reinstated, back pay shall be provided in accordance with the Back Pay law. However, if the
employee fails to return to work on the assigned reinstatement date as instructed in the notice from
the supervisor, the supervisor shall discipline the employee in accordance with the Nation’s laws,
rules and policies governing employment, unless an extension is granted in writing by the supervisor
along with the reason for the extension. An employee who is ultimately terminated for failure to
return to work on his or her assigned reinstatement date shall not be eligible for employment for one
(1) year after the date of termination.
202.11. Consequences for Prohibited Behavior
202.11-1. Either an internal applicant or an external applicant may decline the position at any time
before being directed to EHN or other designated testing site for the applicant’s drug and alcohol
testing.
202.11-2. External Applicant. If an external applicant fails to show at the testing site within the
time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at
section 202.6 that has been documented, the employment offer shall be withdrawn. An external
applicant shall not be eligible for hiring consideration for one hundred eighty (180) days from the
date of the urine drug screening test.
202.11-3. Internal Applicant. If an internal applicant fails to show at the testing site within the time
allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at section
202.6, the employment offer shall be withdrawn. The applicant shall be removed from duty and
subject to respective consequences of this law. The applicant shall not be eligible for hiring
consideration in a different position for one hundred eighty (180) days from the date of the urine
drug screening test.
202.11-4. Employee. If an employee has engaged in prohibited behavior as listed in section 202.61, and/or fails to cooperate by not responding to contact from the MRO within ten (10) business days
(which shall be deemed thereafter as a definite positive test), the employee shall be removed from
duty and subject to the respective consequences of this law.
202.11-5. Consequences.
(a) First Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6
for the first time shall be removed from duty without pay and shall receive a
mandatory referral to ONEAP for an assessment. The ONEAP shall also determine
if the employee shall be subject to return-to-duty/follow-up testing. If follow-up
testing is required, the testing shall be at the employee’s expense.
(2) The employee shall sign a Return-to-Work Agreement and submit the agreement
to his or her supervisor within ten (10) days or the employee shall be terminated and
ineligible for re-hire for one (1) year.
(A) When the supervisor signs the Return-to-Work Agreement the employee
shall be placed back on the work schedule by the next regularly scheduled
workday.
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(3) Failure to comply with the signed Return-to-Work Agreement shall result in the
employee being terminated and ineligible for re-hire for one (1) year.
(b) Second Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
second time within his or her lifetime of employment with the Nation shall be
removed from duty without pay and shall receive a mandatory referral to ONEAP for
an assessment.
(2) The employee shall sign a Return-to-Work Agreement and submit it to the
employee’s supervisor for signature within ten (10) days or the employee shall be
terminated and ineligible for re-hire for one (1) year. After a second violation the
employee shall not be placed back on the work schedule until:
(A) The employee receives approval from the ONEAP that they have
demonstrated sufficient progress in a treatment program that would indicate
the employee is drug and alcohol free within thirty (30) days of the employee
being removed from duty; and
(B) The employee completes a return-to-duty drug screening and alcohol test
at a SAMHSA-certified facility at their own expense, which shall be negative
within thirty (30) days of the employee being removed from duty;
(C) The ONEAP notifies the supervisor of the employee’s eligibility to return
to work.
(3) As a condition of continuing employment, the employee shall participate in
follow-up testing with continued negative results as directed by the ONEAP and
listed in the Return-to-Work Agreement. All follow-up testing shall be at the
employee’s expense.
(4) Failure to comply with the Return-to-Work agreement or follow up testing shall
result in the employee being terminated and ineligible for re-hire for one (1) year.
(c) Third Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
third time in his or her lifetime of employment with the Nation shall be terminated.
The employee shall not be eligible for employment unless he or she receives a
forgiveness pursuant to the Pardon and Forgiveness law. An employee that receives
forgiveness shall not be eligible for re-hire for one (1) year after the date of
termination.
202.12. Re-hire
202.12-1. A former employee that was terminated due to violations of this law shall provide, along
with the former employee’s application for employment, the following:
(a) Proof of completion of a certified Alcohol and Other Drug Abuse program; and
(b) A negative drug screening and alcohol test at a SAMHSA-certified facility completed
within the last thirty (30) days. This drug screening and alcohol test shall be done at the
former employee’s own expense.
202.13. Other Potential Consequences

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202.13-1. The violation of this law may result in consequences to the employee beyond any
discipline or corrective action that may be taken. Other potential consequences include the
following:
(a) Disqualification of Unemployment Benefits. An employee who is terminated as a result
of a violation of this law may be ineligible for unemployment benefits.
(b) Reduction of Workers Compensation Benefits. An employee who incurs an injury in a
work-related accident that occurred while engaged in a violation of this law may have any
workers compensation benefits reduced.
(c) Criminal Penalties. An employee whose conduct violates state or federal criminal laws
may be referred to appropriate law enforcement for criminal prosecution.
(d) Liability for Accidents. An employee whose conduct in violation of this law causes an
accident may be held personally responsible for losses associated with the accident, and the
employee may be required to pay for those losses.
202.14. Confidentiality
202.14-1. Information related to the application of this law is confidential. Access to this
information is limited to those who have a legitimate “need to know” in compliance with relevant
laws and personnel policies and procedures.
202.14-2. All drug and alcohol testing information shall be maintained at EHN in confidential
records which are separate from the employee’s clinical and personnel files. The employee may
request a copy of the employee’s records. The records may be requested by a third party in
accordance with the Oneida Nation’s laws, rules and policies governing employment.
202.15. Communication
202.15-1. HRD shall communicate this law to all employees to ensure all employees are aware of
their role in supporting this law:
(a) All employees shall be given information on how to access this law.
(b) This law shall be reviewed in new employee orientation and other means, as deemed
appropriate by HRD.
(c) All employees shall sign an acknowledgment form stating they have received a copy of
this law, have read and understand it, and agree to follow this law.
End.
See GTC-01-31-94-B
Adopted – BC-08-17-94
Emergency Amended - BC-04-20-95-C
Adopted - BC-10-25-95-A (repealed previous versions)
Amended - BC-10-20-99-A
Amended - BC-12-05-07-B
Amended - BC-12-11-13-F
Emergency Amended - BC-10-26-16-D
Amended - BC-04-12-17-C
Amended – BC-__-__-__-__

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Title 2. Employment – Chapter 202
DRUG AND ALCOHOL FREE WORKPLACE
202.1. Purpose and Policy
202.2. Adoption, Amendment, Repeal
202.3. Definitions
202.4. Application
202.5. Shared Responsibility
202.6. Prohibited Behavior
202.7. Reasonable Suspicion
202.8. Drug and Alcohol Testing

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202.9. Refusal to Test
202.10. Reasonable Suspicion Testing Waiting Period
202.11. Consequences for Prohibited Behavior
202.12. Re-hire
202.13. Other Potential Consequences
202.14. Confidentiality
202.15. Communication

202.1. Purpose and Policy
202.1-1. Purpose. The Nation is committed to protecting the safety, health and well-being of all
employees, and other individuals in the workplace. The Nation recognizes that alcohol abuse and
drug use pose a significant health and safety threat to our customers and other employees. The Nation
also recognizes that alcohol and drug abuse and addiction are treatable illnesses. The Nation realizes
that early intervention and support may improve the success of rehabilitation.
202.1-2. Policy. It is the policy of the Nation to establish a drug and alcohol-free workplace program
that balances respect for individuals with the need to maintain an alcohol and drug-free environment.
The Nation encourages employees to voluntarily seek help for their personal drug and alcoholrelated problems.
202.2. Adoption, Amendment, Repeal
202.2-1. This law was adopted by the Oneida Business Committee by resolution BC-10-25-95-A
and amended by resolutions BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F, BC-04-12-17-C, and
BC-__-__-__-__.
202.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the
Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.
202.2-3. Should a provision of this law or the application thereof to any person or circumstances be
held as invalid, such invalidity shall not affect other provisions of this law which are considered to
have legal force without the invalid portions.
202.2-4. In the event of a conflict between a provision of this law and a provision of another law,
the provisions of this law shall control.
202.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.
202.3. Definitions
202.3-1. This section shall govern the definitions of words or phrases as used within this law. All
words not defined herein shall be used in their ordinary and everyday sense.
(a) “Appropriate authority” means the Human Resources Department hiring representative,
immediate supervisor, EHN, MRO, and/or ONEAP who requests the drug and/or alcohol
testing for reasons of pre-employment, reasonable suspicion, and/or follow-up testing.
(b) “Business day” means Monday through Friday from 8:00am-4:30pm, excluding holidays
recognized by the Nation.
(c) “Confirmed positive test result” means a lab-confirmed drug test that is verified by the
MRO that exceeds the cut-off levels established by this law (levels established by the United
States Department of Health and Human Services), confirmed saliva testing, confirmed
evidential breath alcohol test results of 0.02 or greater; and/or refusal to test.
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(d) “EHN” means the Oneida Employee Health Nursing Department.
(e) “Employee” means any individual who is employed by the Nation and is subject to the
direction and control of the Nation with respect to the material details of the work performed,
or who has the status of an employee under the usual common law rules applicable to
determining the employer-employee relationship. “Employee” includes, but is not limited
to; an individual employed by any program or enterprise of the Nation, but does not include
elected or appointed officials, or individuals employed by a Tribally Chartered Corporation.
For purposes of this law, individuals employed under an employment contract as a limited
term employee are employees of the Nation, not consultants.
(f) “External applicant” means a person who is applying for a position and not currently
employed by the Nation.
(g) “HRD” means the Human Resources Department and/or representatives performing
Human Resources functions applicable to this law.
(h) “Internal applicant” means a person who is applying for a position who is currently
employed by the Nation, this includes those employed under a temporary status.
(i) “MRO” means Medical Review Officer who is a licensed physician who is responsible
for receiving and reviewing laboratory test results generated by an employer’s drug testing
program and evaluating medical explanations for certain drug test results.
(j) “Nation” means the Oneida Nation.
(k) “NHTSA” means the National Highway Traffic Safety Administration.
(l) “ONEAP” means the Oneida Nation Employee Assistance Program which is a
professional counseling program staffed by clinical social workers licensed by the State of
Wisconsin which offers services to the Nation’s employees and family members.
(m) “Prohibited drug(s)” means marijuana, cocaine, opiates, amphetamines, phencyclidine
(PCP), hallucinogens, methaqualone, barbiturates, narcotics, and any other substance
included in Schedules I through V, as defined by Section 812 of Title 21 of the United States
Code. This also includes prescription medication or over-the-counter medicine used in an
unauthorized or unlawful manner.
(n) “Return-to-Work Agreement” means an agreement, developed by an ONEAP counselor
and signed by the employee and the ONEAP counselor, and the referring supervisor, which
sets out the actions the employee needs to complete in order to return to work and remain
employed.
(o) “SAMHSA” means the United States Department of Health and Human Services,
Substance Abuse and Mental Health Services Administration.
(p) “Supervisor” means the immediate supervisor, or person who has taken on the role of
supervisor due to an absence that is responsible for performance review, corrective action,
and day-to-day assignments of duties.
(q) “Work-related accident” means an unexpected event involving an employee that occurs
in the employee’s working environment or during an activity related to work, that:
(1) results in an injury to the employee or another person that may require medical
intervention by a police officer or emergency medical technician, or treatment at a
medical facility,
(2) results in death of the employee or another person, or
(3) involves any property damage.
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202.4. Application
202.4-1. This law applies to all applicants for employment, whether external or internal, and all
employees during working hours, when on-call, and when operating a vehicle owned by the Nation
or a vehicle rented by the Nation.
202.4-2. An employee is prohibited from the use of prohibited drugs and alcohol during working
hours, when on-call, and when operating a vehicle owned by the Nation or a vehicle rented by the
Nation.
202.4-3. An employee is prohibited from the use of intoxicants while on official business travel
while the conference or meeting is in session.
202.4-4. An employee is not exempted from this law if they travel to another state, territory or
country where the use of certain drugs is legal.
202.5. Shared Responsibility
202.5-1. A safe and productive drug and alcohol free workplace is achieved through cooperation
and shared responsibility between the employer and an employee.
202.5-2. Employee. It is the employee’s responsibility to:
(a) Be free from the effects of prohibited drugs, and/or alcohol during working hours, and/or
when scheduled to be on-call.
(b) Refrain from the unlawful manufacture, distribution, dispensation or possession of any
prohibited drugs while working.
(c) Comply with drug and alcohol testing if directed to do so upon the request of an
appropriate authority.
(d) Confidentially report suspicious behavior of an employee immediately to the supervisor
of the employee in question.
(e) Cooperate with the requests made by EHN and the MRO. The employee shall return the
call of the MRO within twenty-four (24) hours of the call being made to the employee. An
employee who fails to cooperate and does not contact the MRO within twenty-four (24) hours
of receiving contact shall not receive back pay for any time between the date the MRO placed
the call until the time the employee does return the call of the MRO.
(f) Sign a consent form to be tested for alcohol and drugs when requested by an appropriate
authority.
(g) Provide the appropriate information to EHN in the event a medical condition prevents
the employee from properly completing drug and alcohol testing so alternative drug and
alcohol testing measures can be taken by EHN.
202.5-3. Supervisor. It is the supervisor’s responsibility to:
(a) Be familiar with this law and any related policies and procedures.
(b) Investigate reported suspicious behaviors while maintaining the confidentiality of the
person who reported the suspicious behavior.
(c) Promptly intervene with an employee who is believed to be under the influence of
prohibited drugs and/or alcohol.
(d) Monitor the employee under the influence of prescription and/or over-the-counter
medications that could compromise the safety of the employee, fellow employees, or the
public.
(e) Send the employee through the contracted transportation service for reasonable suspicion
drug and alcohol testing.
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(f) Take appropriate action as outlined by this law.
(g) Sign the Return-to-Work Agreement along with the employee and ONEAP counselor
that was developed by ONEAP.
(h) Send a copy of the consent to submit to drug and alcohol testing form signed by the
employee to EHN.
202.5-4. Supervisor and Employee. A supervisor or an employee that fails to adhere to the
responsibilities of the supervisor or employee under this law may be subject to disciplinary action
or other consequences as explained in section 202.13.
202.5-5. Off-duty Use of Prohibited Drugs or Alcohol. Off-duty use of prohibited drugs or alcohol
may result in continued impairment during on-duty hours, which shall then constitute a violation of
this law. It is the employee’s responsibility to understand the consequences of off-duty use, and take
steps to avoid the possibility of on-duty impairment. An employee who is called in for emergency
or unplanned work, excluding those on-call, and has been using prohibited drugs or drinking
alcoholic beverages prior to such a call, shall inform the employee’s supervisor they cannot report,
and shall continue to decline to report until the effects of the prohibited drugs or alcohol have left
the employee’s system. Such refusal to report shall not be viewed as improper, and disciplinary
action shall not arise from such refusal.
202.5-6. Use of Controlled Substances That May Affect Safety or Performance. An employee who
is taking or is under the influence of any controlled substances during working hours, including
prescription medication or over the counter medication, which may affect the employee’s job
performance or safety of the employee, fellow employees, public, or assets of the Nation have the
following obligations:
(a) The employee shall notify the employee’s immediate supervisor about the use of the
substance and possible work-related effects prior to commencing work.
(b) Upon request, the employee may be required to obtain a written statement of any work
restrictions or impact on performance or safety relating to the legal substances from the
employee’s physician or pharmacist.
(c) An employee shall not sell or share his or her prescribed medications with any other
person, and shall not take medications that are prescribed to another person.
(d) It may be necessary for the employee’s supervisor, area manager or EHN to consult with
the employee’s personal physician, pharmacist or an MRO, with the employee’s approval
or written authorization, to determine if the medication might impact the employee’s
ability to perform the employee’s job, or pose a hazard to other employees or to the
general public.
(e) The employee’s duties may be temporarily modified for up to one hundred eighty (180)
days. Any modification of duties shall result in the appropriate modification of pay as
established by the Human Resources Department.
202.6. Prohibited Behavior
202.6-1. An applicant or employee of the Nation is in violation of this law if he or she:
(a) Uses, possesses, and/or sells prohibited drugs, or is under the influence of prohibited
drugs or alcohol while on duty. Notwithstanding section 202.11, any employee who is
caught using, possessing or selling prohibited drugs shall be immediately terminated from
employment with the Nation.
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(b) Fails to inform his or her supervisor of being under the influence of prescription
medication and/or over-the-counter medication(s) which may affect the employee’s job
performance or safety of the employee, fellow employees, public, or assets of the Nation.
(c) Uses unauthorized prescription drugs or intentionally misuses and/or abuses prescription
medications.
(d) Refuses to test.
(e) Has a confirmed positive test result after completing a drug and/or alcohol test through
EHN or a medical facility, or has a confirmatory test come back as positive.
202.7. Reasonable Suspicion
202.7-1. Establishing reasonable suspicion begins when the supervisor becomes aware either by
personal observation and/or secondary reported observation that an employee may be under the
influence of drugs and/or alcohol: this may include seeing or receiving a report that the employee
has taken or possess prohibited drugs or prescription medication that is not specifically prescribed
to that employee. In order to make a reasonable suspicion determination, the supervisor shall
evaluate the following:
(a) Specific observations concerning appearance, behavior, speech, or body odors of the
employee consistent with possible drug use or alcohol misuse.
(b) The observations may include indications of the chronic and withdrawal effects of
prohibited drugs or alcohol.
202.7-2. The supervisor shall document his or her observations and discuss the matter with the
employee. During this discussion, the supervisor may ask the employee for proof of a prescription.
The employee shall comply with this request. If after a discussion with the employee, the supervisor
continues to suspect the employee may currently still be under the influence or reasonable suspicion
is otherwise established, the supervisor shall refer the employee for reasonable suspicion drug and
alcohol testing.
202.7-3. A supervisor’s decision made in regard to the reasonable suspicion drug and alcohol testing
of an employee is final. An employee shall not appeal or challenge a supervisor’s determination for
reasonable suspicion drug and alcohol testing.
202.8. Drug and Alcohol Testing
202.8-1. Drug and alcohol tests are forensic in nature, meaning they are performed to formalize
conditions of employment as described in this law. To ensure the accuracy and fairness of this law,
all drug and alcohol testing shall be conducted according to SAMHSA guidelines for Federal
Workplace Drug Testing Programs.
202.8-2. EHN or its designee shall use Federal Drug Administration approved urine tests and
NHTSA certified evidential breath testing devices or NHTSA certified saliva-screening devices,
operated by technicians whose training terminology, procedures, methods, equipment, forms, and
quality assurance comply with best practices.
(a) Confirmation drug testing done on urine specimens shall be conducted by a laboratory
which is certified by the U.S. Department of Health and Human Services using its
confirmation methods and established cut-off levels. Laboratory-confirmed results shall
undergo the verification process by a MRO.
(b) Confirmation breath alcohol testing shall be performed using an NHTSA certified
evidential breath testing device.
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(c) Confirmation drug testing done by saliva testing shall be performed using an NHTSA
certified saliva test.
202.8-3. If an employee is involved in a work-related accident, he or she shall immediately inform
his or her supervisor of the accident.
202.8-4. All external and internal applicants shall participate in pre-employment drug testing. A
negative drug test result shall be required for employment eligibility.
(a) Exemption for Positive THC Test Result. An external applicant’s confirmed positive THC
test result shall be exempted from the requirement of a negative drug test result for
employment eligibility unless prohibited by an external licensing or grant requirement.
202.8-5. Each employee shall participate in reasonable suspicion and follow-up testing upon the
request of an appropriate authority. A negative test result is required for unimpeded employment
eligibility.
202.8-6. Dilution of Test Results. In cases where a drug test result is diluted, a positive dilute of the
test result requires that the applicant or employee shall be given a confirmed positive test result,
while a negative dilute of the test result requires retesting. EHN shall notify the applicant or
employee of the required retesting.
(a) If the re-test results in a negative-dilute, the applicant or employee shall be given a
negative test result.
(b) If the re-test results in a positive-dilute, then the applicant or employee shall be given a
positive test result.
202.9. Refusal to Test
202.9-1. Refusal to test is prohibited behavior as defined in section 202.6. Refusal to test carries
the same consequences as a confirmed positive test result. Examples of refusal to test include, but
are not limited to:
(a) Substituting, adulterating (falsifying), or diluting the specimen.
(b) Refusal to sign the required forms.
(c) Refusal to cooperate in the testing process in such a way that prevents completion of
accurate testing and as directed by the collector.
(d) Failing to remain at the testing site until the testing process is complete.
(e) Providing an insufficient sample of urine or breath.
(f) Failing to test or to re-test.
(g) Failing to appear within two (2) hours after an order or request is made for testing or retesting.
(h) Behaving in a confrontational or discourteous manner that disrupts the collection process.
202.10. Reasonable Suspicion Testing Waiting Period
202.10-1. This section applies only to current employees who meet the reasonable suspicion
standard. It does not apply to applicants of the Nation.
202.10-2 During drug and alcohol testing for reasonable suspicion, an employee shall be
immediately removed from duty without pay at the time of initiation of the reasonable suspicion
drug and alcohol testing and specimen collection until the employer is notified by EHN of negative
results on both the drug and alcohol tests, or MRO-verified negative test results.
202.10-3. When confirmation of test results are made available to the employer, the supervisor shall
notify the employee by telephone and by certified mail using the contact information provided by
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the employee. The notice to the employee shall identify a reinstatement date if the test was
confirmed negative, or applicable consequences if the test was confirmed positive. If the employee
is reinstated, back pay shall be provided in accordance with the Back Pay law. However, if the
employee fails to return to work on the assigned reinstatement date as instructed in the notice from
the supervisor, the supervisor shall discipline the employee in accordance with the Nation’s laws,
rules and policies governing employment, unless an extension is granted in writing by the supervisor
along with the reason for the extension. An employee who is ultimately terminated for failure to
return to work on his or her assigned reinstatement date shall not be eligible for employment for one
(1) year after the date of termination.
202.11. Consequences for Prohibited Behavior
202.11-1. Either an internal applicant or an external applicant may decline the position at any time
before being directed to EHN or other designated testing site for the applicant’s drug and alcohol
testing.
202.11-2. External Applicant. If an external applicant fails to show at the testing site within the
time allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at
section 202.6 that has been documented, the employment offer shall be withdrawn. An external
applicant shall not be eligible for hiring consideration for one hundred eighty (180) days from the
date of the urine drug screening test.
202.11-3. Internal Applicant. If an internal applicant fails to show at the testing site within the time
allotted, or on the date of the scheduled test, or has engaged in prohibited behavior as listed at section
202.6, the employment offer shall be withdrawn. The applicant shall be removed from duty and
subject to respective consequences of this law. The applicant shall not be eligible for hiring
consideration in a different position for one hundred eighty (180) days from the date of the urine
drug screening test.
202.11-4. Employee. If an employee has engaged in prohibited behavior as listed in section 202.61, and/or fails to cooperate by not responding to contact from the MRO within ten (10) business days
(which shall be deemed thereafter as a definite positive test), the employee shall be removed from
duty and subject to the respective consequences of this law.
202.11-5. Consequences.
(a) First Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6
for the first time shall be removed from duty without pay and shall receive a
mandatory referral to ONEAP for an assessment. The ONEAP shall also determine
if the employee shall be subject to return-to-duty/follow-up testing. If follow-up
testing is required, the testing shall be at the employee’s expense.
(2) The employee shall sign a Return-to-Work Agreement and submit the agreement
to his or her supervisor within ten (10) days or the employee shall be terminated and
ineligible for re-hire for one (1) year.
(A) When the supervisor signs the Return-to-Work Agreement the employee
shall be placed back on the work schedule by the next regularly scheduled
workday.
(3) Failure to comply with the signed Return-to-Work Agreement shall result in the
employee being terminated and ineligible for re-hire for one (1) year.
(b) Second Violation.
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(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
second time within his or her lifetime of employment with the Nation shall be
removed from duty without pay and shall receive a mandatory referral to ONEAP for
an assessment.
(2) The employee shall sign a Return-to-Work Agreement and submit it to the
employee’s supervisor for signature within ten (10) days or the employee shall be
terminated and ineligible for re-hire for one (1) year. After a second violation the
employee shall not be placed back on the work schedule until:
(A) The employee receives approval from the ONEAP that they have
demonstrated sufficient progress in a treatment program that would indicate
the employee is drug and alcohol free within thirty (30) days of the employee
being removed from duty; and
(B) The employee completes a return-to-duty drug screening and alcohol test
at a SAMHSA-certified facility at their own expense, which shall be negative
within thirty (30) days of the employee being removed from duty;
(C) The ONEAP notifies the supervisor of the employee’s eligibility to return
to work.
(3) As a condition of continuing employment, the employee shall participate in
follow-up testing with continued negative results as directed by the ONEAP and
listed in the Return-to-Work Agreement. All follow-up testing shall be at the
employee’s expense.
(4) Failure to comply with the Return-to-Work agreement or follow up testing shall
result in the employee being terminated and ineligible for re-hire for one (1) year.
(c) Third Violation.
(1) Any employee who engages in prohibited behavior as defined in section 202.6 a
third time in his or her lifetime of employment with the Nation shall be terminated.
The employee shall not be eligible for employment unless he or she receives a
forgiveness pursuant to the Pardon and Forgiveness law. An employee that receives
forgiveness shall not be eligible for re-hire for one (1) year after the date of
termination.
202.12. Re-hire
202.12-1. A former employee that was terminated due to violations of this law shall provide, along
with the former employee’s application for employment, the following:
(a) Proof of completion of a certified Alcohol and Other Drug Abuse program; and
(b) A negative drug screening and alcohol test at a SAMHSA-certified facility completed
within the last thirty (30) days. This drug screening and alcohol test shall be done at the
former employee’s own expense.
202.13. Other Potential Consequences
202.13-1. The violation of this law may result in consequences to the employee beyond any
discipline or corrective action that may be taken. Other potential consequences include the
following:
(a) Disqualification of Unemployment Benefits. An employee who is terminated as a result
of a violation of this law may be ineligible for unemployment benefits.
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(b) Reduction of Workers Compensation Benefits. An employee who incurs an injury in a
work-related accident that occurred while engaged in a violation of this law may have any
workers compensation benefits reduced.
(c) Criminal Penalties. An employee whose conduct violates state or federal criminal laws
may be referred to appropriate law enforcement for criminal prosecution.
(d) Liability for Accidents. An employee whose conduct in violation of this law causes an
accident may be held personally responsible for losses associated with the accident, and the
employee may be required to pay for those losses.
202.14. Confidentiality
202.14-1. Information related to the application of this law is confidential. Access to this
information is limited to those who have a legitimate “need to know” in compliance with relevant
laws and personnel policies and procedures.
202.14-2. All drug and alcohol testing information shall be maintained at EHN in confidential
records which are separate from the employee’s clinical and personnel files. The employee may
request a copy of the employee’s records. The records may be requested by a third party in
accordance with the Oneida Nation’s laws, rules and policies governing employment.
202.15. Communication
202.15-1. HRD shall communicate this law to all employees to ensure all employees are aware of
their role in supporting this law:
(a) All employees shall be given information on how to access this law.
(b) This law shall be reviewed in new employee orientation and other means, as deemed
appropriate by HRD.
(c) All employees shall sign an acknowledgment form stating they have received a copy of
this law, have read and understand it, and agree to follow this law.
End.
See GTC-01-31-94-B
Adopted – BC-08-17-94
Emergency Amended - BC-04-20-95-C
Adopted - BC-10-25-95-A (repealed previous versions)
Amended - BC-10-20-99-A
Amended - BC-12-05-07-B
Amended - BC-12-11-13-F
Emergency Amended - BC-10-26-16-D
Amended - BC-04-12-17-C
Amended – BC-__-__-__-__

2 O.C. 202 – Page 9

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r°'\

000000

ONEIDA
MEMORANDUM

I.

To:

Legislative Operating Committee

From:

Keith Doxtator

Date:

January 16th, 2024

Subject:

Fiscal Impact for: Drug and Alcohol Free Workplace Law
Amendments

Estimated Fiscal Impact Summary:
Request: Amendments to Drug and Alcohol Free Workplace Law
Implementing Agency

Employee Health
Human Resources
Grants

Estimated Impact
Total Estimated Fiscal Impact

II.

Current Fiscal Year
Minimal

Ten Year Estimate
Minimal

Background:
The Drug and Alcohol Free Workplace Law was adopted by the Oneida Business
Committee in 1994 through resolution BC-10-25-95-A and then amended through
resolutions BC-10-20-99-A, BC-12-05-07-B, BC-12-11-13-F, and BC-04-12-17-C. The
purpose of the Drug and Alcohol Free Workplace law is to establish a drug and
alcohol-free workplace program that balances respect for individuals with the need
to maintain an alcohol and drug-free environment. [2 O.C. 202.1-2].
On August 30, 2022, the Legislative Operating Committee received a request from
the Human Resources Department to add the Drug and Alcohol Free Workplace law
amendments to its Active Files List. The Human Resources Department indicated
that with the Benton – Pre-Employment Drug Testing petition currently pending –
which requests to remove THC from the pre-employment drug testing requirements,

P.O. Box 365 • Oneida, WI 54155
oneida-nsn.gov

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they were directed by the Oneida Business Committee to work with the Oneida Law
Office on potential proposed language to address this petition. The Legislative
Operating Committee added this item to its Active Files List on September 7, 2022.
The LOC is considering amendments to the Drug and Alcohol Free Workplace Law,
summarized as:
• All external and internal applicants being subject to pre-employment drug
screening.
• Adding an exemption for positive THC test results to the pre-employment
drug screening, unless prohibited by an external licensing or grant
requirement.
III.

Methodology and Assumptions:
Not Part of the Amendments
Throughout the comment period and discussions for this amendment, there
appeared to be many misassumptions or misunderstandings of what these
amendments accomplish. The proposed exemption only applies to pre-employment
drug screenings. Once employed, each employee will still be subject to the same
prohibition from the use of prohibited drugs. In short, past use of THC is not
indicative of future intent. In this fiscal impact review, there is not a change to drug
use allowed during employment, and I will assume employees comply with our laws
and regulations accordingly.
Grant Requirements
One of the first questions posed to the organization was what type of grant
requirements are involved within the Nation that may factor into this decision.
Some of the grants received require Oneida to comply with the Drug Free Workplace
Act of 1988. However, this was clarified by Chief Council to indicate that “the federal
law and regulations require a policy, not a prohibition or testing. The Nation has a
policy regarding use of alcohol or drugs in the workplace.” The drug-free
certification required by some federal grant applications assures that once hired, an
employee would not engage in unlawful manufacture, distribution, dispensation,
possession, or use of a controlled substance in conducting any activity with such
grant; our current policy complies with this requirement.

A good mind. A good heart. A strong fire.

~
ONEIDA

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If there were a unique aspect to a specific grant detailing positive THC test results
for an applicant, then further tracking would need to be developed, however no
such instances requiring further tracking currently occur.
Insurance Implications
Risk inquired with our insurance carriers to determine is this amendment would
impact any of our policy coverages or impacts. Short answer – no, it would not.
Additional comment from VP of Tribal First: In theory, liability exposure could extend
to a circumstance where an employee who was actually under the influence and
the employer knew or should have known were to cause harm to a claimant.
However, the liability determination in such an event would depend on whether
he or she was intoxicated at the time of the incident, not necessarily whether he
or she had ever been under influence at any time. To the extent that claimant
could allege negligent hiring practice because the employer had express
knowledge of THC usage due to a positive screen, but nonetheless offered
employment, I don’t see that type of argument succeeding on its merit in most
cases. Technology isn’t advanced enough to determine when a prospective
employee was under the influence. Plus, cannabis is mostly legal now across the
states in some format, medically or recreationally if not both, and so it’s hard to
imagine an increase in potential EPLI exposure if they hired someone despite a
positive output. I also don’t think there is exposure related to prior candidates
who may have been denied employment due to a positive screen. Those who test
THC usage are not in and of themselves a stand-alone protected class, and so my
guess is any such claim, however unlikely, would not succeed either.
IV.

Financial Impact:
There does not appear to be a change to the amount, nor type of pre-employment
screens done. There is not a difference to the standards we’re holding our workforce
accountable to. There does not appear to be any additional liability by widening the
scope of our acceptable applicants.
While there doesn’t appear to be any additional financial consideration, I cannot
rule out the management anecdotes of hiring a THC user that does not comply with
the Nation’s drug policy as an employee. There may be additional turnover and
related costs, although minimal.

A good mind. A good heart. A strong fire.

~
ONEIDA

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Finance Administration Office

V. Recommendation:
Finance does not provide a recommendation for this request. Rather our aim is to
disclose the financial impact and allow the BC to weigh the value to cost among all its
priorities.
Please contact Finance with any follow up questions.

A good mind. A good heart. A strong fire.

~
ONEIDA

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Oneida Nation

"'

Oneida Business Committee
Legislative Operating Committee

=DODDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

Legislative Operating Committee
February 7, 2024

Clean Air Policy
Amendments

Submission Date: 1/18/23
LOC Sponsor: Jennifer Webster

Public Meeting: 12/15/23
Emergency Enacted: N/A

Summary: This item was carried over from last term. On January 10, 2023, the LOC received a
request from Retail to consider amendments to the Clean Air Policy to create an exemption for smoking
cigars and tobacco in pipes within a premise designated by retail as a tobacco store, on or in premises
controlled by Oneida Retail, that sells tobacco product and in which the smoking of only cigars and
tobacco in pipes is permitted.
1/18/23 LOC: Motion by Jennifer Webster to add the Clean Air Policy amendments to the Active Files List
with David P. Jordan as the sponsor; seconded by Marie Cornelius. Motion carried
unanimously.
1/26/23:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Clorissa N. Leeman, Carolyn Salutz, Grace Elliott, Kristal Hill. This was a work
meeting held on Microsoft Teams. The purpose of this work meeting was to review and
discuss the proposed draft of amendments to the Clean Air Policy.

2/1/23 LOC:

Motion by Marie Cornelius to approve the draft of the Clean Air policy amendments and direct
that a legislative analysis be completed; seconded by Daniel Guzman King Motion carried
unanimously.

2/20/23:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Marie
Cornelius, Clorissa N. Leeman, Debra Danforth, Michelle Tipple, Victoria Flowers, Brittany
Nicholas, Kristal Hill. This was a work meeting held on Microsoft Teams. The purpose of this
work meeting was to review and discuss the proposed draft of amendments to the Clean Air
Policy all allow the Comprehensive Health Division and the Environmental, Health, Safety,
Land, And Agriculture Division the opportunity to provide input on the proposed
amendments.

3/20/23:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Marie Cornelius, Clorissa N.
Leeman, Debra Danforth, Michelle Tipple, Victoria Flowers, Brittany Nicholas, James
Petitjean, James Snitgen, Debra Powless, Timothy Skenandore, Carl Artman, Kristal Hill.
This was a work meeting held on Microsoft Teams. The purpose of this work meeting was to
review and discuss the proposed draft of amendments to the Clean Air Policy all allow the
stakeholders the opportunity to provide input on the proposed amendments before the LOC
makes a policy decision as to what direction to go with the amendments.

7/10/23 LOC: Motion by Jennifer Webster to approve the updated draft and legislative analysis of the Clean
Air Policy amendments; seconded by Kirby Metoxen. Motion carried unanimously.

Page 1 of 2

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10/4/23 LOC: Motion by Jonas Hill to add the Clean Air Policy Amendments to the Active Files List with
Jennifer Webster as the sponsor; seconded by Marlon Skenandore. Motion carried
unanimously.
10/18/23:

Work Meeting. Present: Jameson Wilson, Marlon Skenandore, Jennifer Webster, Jonas Hill,
Clorissa Leeman, Grace Elliott, Maureen Perkins, Fawn Cottrell. The purpose of this work
meeting was for the new Legislative Operating Committee to review and approve the draft
and legislative analysis for the proposed amendments to the Clean Air Policy.

11/1/23 LOC: Motion by Jennifer Webster to approve the public meeting packet for the Clean Air Policy
Amendments with noted change to the public meeting notice, and forward the Clean Air
Policy Amendments to a public meeting to be held on December 15, 2023; seconded by Kirby
Metoxen. Motion carried unanimously.
11/1/23:

Phone Call. Present: Clorissa Leeman, Krystal John. The purpose of this phone call was to
follow up on the comments made by Attorney Krystal John during the LOC meeting in regard
to the Clean Air Policy Amendments.

12/15/23:

Public Meeting Held. Present: Jameson Wilson, Jonas Hill, Kirby Metoxen, Clorissa Leeman,
Maureen Perkins, Michelle Tipple, Peggy Helm-Quest, Brooke Doxtator, Jim Snitgen. Present
on Microsoft Teams: Joel Maxam, Katsitsiyo Danforth, Mark W. Powless, Brittany Nicholas,
David Jordan, Kristal Hill, Sharon Mousseau, Mollie Passon, Stefanie Reinke, Debra
Santiago, Jennifer Webster, Nina Vang, Grace Elliott, Victoria Flowers. Two (2) individuals
provided public comment during this public meeting.

12/26/23:

Public Comment Period Closed. Four (4) individuals provided written comments during the
public comment period.

1/3/24 LOC:

Motion by Jennifer Webster to accept the public comments and the public comment review
memorandum and defer to a work meeting for further discussion; seconded by Marlon
Skenadore. Motion carried unanimously.

1/3/24:

Work Meeting. Present: Jameson Wilson, Marlon Skenandore, Jennifer Webster, Jonas Hill,
Kirby Metoxen Clorissa Leeman, Carolyn Salutz, Kristal Hill, Maureen Perkins, Fawn
Cottrell. The purpose of this work meeting was for the LOC to review and consider the public
comments received.

1/17/24 LOC: Motion by Jennifer Webster to approve the updated public comment review memorandum,
draft, and legislative analysis; seconded by Jonas Hill. Motion carried unanimously.
Motion by Jennifer Webster to approve the fiscal impact statement request memorandum and
forward to the Finance Department directing that a fiscal impact statement be prepared and
submitted to the LOC by January 31, 2024; seconded by Kirby Metoxen. Motion carried
unanimously.
2/1/24:

Work Meeting. Present: Jameson Wilson, Jennifer Webster, Jonas Hill, Kirby Metoxen
Clorissa Leeman, Carolyn Salutz, Kristal Hill, Maureen Perkins, Fawn Cottrell. The purpose
of this work meeting was for the LOC to review the adoption materials for the Clean Air
Policy Amendments.

Next Steps:
 Approve the Clean Air Policy Amendments adoption packet and forward to the Oneida
Business Committee for consideration.
A good mind. A good heart. A strong fire.

Page 2 of 2

~

ONEIDA

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Oneida Nation

=DODDDD=

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

TO:
FROM:
DATE:
RE:

"'

Oneida Business Committee
Legislative Operating Committee

Oneida Business Committee
Jameson Wilson, LOC Chairperson
February 14, 2024
Adoption of Amendments to the Clean Air Policy

Please find the following attached backup documentation for your consideration of the adoption
of amendments to the Clean Air Policy:
1.
2.
3.
4.
5.
6.

Resolution: Amendments to the Clean Air Policy
Statement of Effect: Amendments to the Clean Air Policy
Clean Air Policy Amendments Legislative Analysis
Clean Air Policy Amendments Draft (Redline)
Clean Air Policy Amendments Draft (Clean)
Clean Air Policy Amendments Fiscal Impact Statement

Overview
Amendments to the Clean Air Policy are being sought to clarify and provide additional exemptions
to the prohibition against smoking, address how violations of this law by employees are
handled, and make other minor drafting changes. The Clean Air Policy provides a healthy
working and learning environment within buildings and vehicles owned and operated by the
Nation by prohibiting smoking. [4 O.C. 411.1-1]. The amendments to the Clean Air Policy:
 Include a new exemption to the prohibition of smoking, which is a tobacco store, on or in
premises controlled by Oneida Retail, that sells tobacco product, unless prohibited by
Oneida Retail or the terms and conditions of the lease or land or building assignment. [4
O.C. 411.4-2(b)(3)];
 Clarify the exemption to the prohibition of smoking for residential buildings owned by the
Nation only applies if not otherwise prohibited by a lease or rental agreement. [4 O.C.
411.4-2(b)(2)];
 Eliminate the requirement that a suspension for a second violation of this law be one (1)
week in length, providing the supervisor and HRD greater flexibility in determining a
suspension length that best fits the violation. [4 O.C. 411.4-4(b)(2)]; and
 Make other minor drafting changes, such as changing the title from the Clean Air Policy
to the Clean Air law.
The Legislative Operating Committee developed the proposed amendments to the Clean Air Policy
through collaboration with representatives from the Oneida Law Office, Gaming, Retail,
Comprehensive Health Division, and Environmental, Health, Safety, Land, and Agriculture
Division. The Legislative Operating Committee held six (6) work meetings on the development of
the amendments to the Clean Air Policy.

Page 1 of 2
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The development of the amendments to the Clean Air Policy complies with all processes and
procedures required by the Legislative Procedures Act, including the development of a legislative
analysis, a fiscal analysis, and the opportunity for public review during a public meeting and public
comment period. [1 O.C. 109.6, 109.7, 109.8].
A public meeting on the proposed amendments to the Clean Air Policy was held on December 15,
2023. Two (2) individuals provided oral comments during the public meeting. The public comment
period was then held open until December 26, 2023. Four (4) individuals provided written
comments during the public comment period. The Legislative Operating Committee reviewed and
considered the public comments received on January 3, 2024, and any changes have been
incorporated into this draft.
The amendments to the Clean Air Policy will become effective on February 28, 2024.
Requested Action
Adopt the Resolution: Amendments to the Clean Air Policy

Page 2 of 2

A good mind. A good heart. A strong fire.

~
ONEIDA

Oneida Nation

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Post Office Box 365

Phone: (920)869-2214

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Oneida, WI 54155

BC Resolution #
Amendments to the Clean Air Policy
WHEREAS,

the Oneida Nation is a federally recognized Indian government and a treaty tribe
recognized by the laws of the United States of America; and

WHEREAS,

the Oneida General Tribal Council is the governing body of the Oneida Nation; and

WHEREAS,

the Oneida Business Committee has been delegated the authority of Article IV, Section 1,
of the Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS,

the Clean Air Policy (“the Law”) was adopted by motion of the Oneida Business Committee
on May 25, 1994, and amended by resolutions BC-02-24-10-I, BC-05-28-14-A; and

WHEREAS,

the purpose of this Law is to provide a healthy working and learning environment within
buildings and vehicles owned and operated by the Nation by prohibiting smoking; and

WHEREAS

currently, the Law provides that no person may smoke in any building owned or operated
by the Nation, in any vehicle owned or operated by the Nation, or within thirty (30) feet of
any building owned or operated by the Nation, except that a person may smoke within thirty
(30) feet of the retail outlets or any gaming establishments; and

WHEREAS,

the Law provides various exemptions from the prohibition against smoking; and

WHEREAS,

the amendments to the Law provide a new exemption to the prohibition of smoking, which
is a tobacco store, on or in premises controlled by Oneida Retail, that sells tobacco product,
unless prohibited by Oneida Retail or the terms and conditions of the lease or land or
building assignment; and

WHEREAS,

the amendments to the Law further clarify the exemption to the prohibition of smoking for
residential buildings owned by the Nation only applies if not otherwise prohibited by a lease
or rental agreement; and

WHEREAS,

the amendments to the Law eliminate the requirement that a suspension for a second
violation of this law be one (1) week in length, providing the supervisor and HRD greater
flexibility in determining a suspension length that best fits the violation; and

WHEREAS,

the amendments to the Law make other minor drafting changes, such as changing the title
from the Clean Air Policy to the Clean Air law; and

WHEREAS,

the Legislative Operating Committee developed the proposed amendments to the Law
through collaboration with representatives from the Oneida Law Office, Gaming, Retail,
Comprehensive Health Division, and Environmental, Health, Safety, Land, and Agriculture
Division; and

WHEREAS,

in accordance with the Legislative Procedures Act a legislative analysis and fiscal impact
statement were completed for the proposed amendments to the Law; and

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BC Resolution _____________
Amendments to the Clean Air Policy
Page 2 of 2

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WHEREAS,

a public meeting for the proposed amendments to this Law was held on December 15,
2023,with two (2) individuals providing oral comments, and the public comment period for
the amendments to this Law was held open until December 26, 2023, with four (4)
individuals providing written comments; and

WHEREAS,

the Legislative Operating Committee reviewed and considered the public comments
received on January 3, 2023, and any changes have been incorporated into this draft; and

NOW THEREFORE BE IT RESOLVED, the Oneida Business Committee hereby adopts the amendments
to the Clean Air law which shall become effective on February 28, 2024.

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Oneida Nation

~

Oneida Business Committee
Legislative Operating Committee

000000

PO Box 365 • Oneida, WI 54155‐0365

ONEIDA

Oneida‐nsn.gov

Statement of Effect
Amendments to the Clean Air Policy
Summary
This resolution adopts amendments to the Clean Air Policy to clarify and provide additional
exemptions to the prohibition against smoking, address how violations of this law by employees
are handled, and make other minor drafting changes.
Submitted by: Clorissa N. Leeman, Senior Staff Attorney, Legislative Reference Office
Date: January 22, 2024
Analysis by the Legislative Reference Office
This resolution adopts amendments to the Clean Air Policy. The purpose of the Clean Air Policy
is to provide a healthy working and learning environment within buildings and vehicles owned
and operated by the Nation by prohibiting smoking. [4 O.C. 411.1-1]. The amendments to the
Clean Air Policy:
 Include a new exemption to the prohibition of smoking, which is a tobacco store, on or in
premises controlled by Oneida Retail, that sells tobacco product, unless prohibited by
Oneida Retail or the terms and conditions of the lease or land or building assignment. [4
O.C. 411.4-2(b)(3)];
 Clarify the exemption to the prohibition of smoking for residential buildings owned by the
Nation only applies if not otherwise prohibited by a lease or rental agreement. [4 O.C.
411.4-2(b)(2)];
 Eliminate the requirement that a suspension for a second violation of this law be one (1)
week in length, providing the supervisor and HRD greater flexibility in determining a
suspension length that best fits the violation. [4 O.C. 411.4-4(b)(2)]; and
 Make other minor drafting changes, such as changing the title from the Clean Air Policy
to the Clean Air law.
Adoption of any legislation is required to comply with the Legislative Procedures Act (“the LPA”),
which was adopted by the General Tribal Council through resolution GTC-01-07-13-A for the
purpose of providing a standardized process for the adoption of laws of the Nation. [1 O.C. 109.11]. The Clean Air Policy amendments complied with all processes and procedures required by the
LPA, including the development of a legislative analysis, a fiscal analysis, and the opportunity for
public review during a public meeting and public comment period. [1 O.C. 109.6, 109.7, 109.8].
A public meeting on the proposed amendments to the Clean Air Policy was held on December 15,
2023. Two (2) individuals provided oral comments during the public meeting. The public comment
period was then held open until December 26, 2023. Four (4) individuals provided written
comments during the public comment period. The Legislative Operating Committee reviewed and
considered the public comments received on January 3, 2024, and any changes have been
incorporated into this draft.
Page 1 of 2
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The amendments to the Clean Air Policy will become effective on February 28, 2024.
Conclusion
Adoption of this resolution would not conflict with any of the Nation’s laws.

Page 2 of 2

A good mind. A good heart. A strong fire.

~
ONEIDA

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Analysis to Draft 4 for OBC Consideration
2024 02 14

CLEAN AIR POLICY AMENDMENTS
LEGISLATIVE ANALYSIS
SECTION 1. EXECUTIVE SUMMARY
Intent of the
Proposed Amendments

Purpose
Affected Entities
Public Meeting
Fiscal Impact

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Analysis by the Legislative Reference Office
 Include a new exemption to the prohibition of smoking, which is a
tobacco store, on or in premises controlled by Oneida Retail, that sells
tobacco product, unless prohibited by Oneida Retail or the terms and
conditions of the lease or land or building assignment. [4 O.C. 411.42(b)(3)];
 Clarify the exemption to the prohibition of smoking for residential
buildings owned by the Nation only applies if not otherwise prohibited
by a lease or rental agreement. [4 O.C. 411.4-2(b)(2)];
 Eliminate the requirement that a suspension for a second violation of this
law be one (1) week in length, providing the supervisor and HRD greater
flexibility in determining a suspension length that best fits the violation.
[4 O.C. 411.4-4(b)(2)]; and
 Make other minor drafting changes.
The purpose of this law is to provide a healthy working and learning
environment within buildings and vehicles owned and operated by the Nation
by prohibiting smoking. [4 O.C. 411.1-1].
Oneida Nation employees and community members.
A public meeting was held on December 15, 2023. The public comment
period was held open until December 26, 2023.
A fiscal impact statement was provided by the Finance Department on
January 30, 2024.

SECTION 2. LEGISLATIVE DEVELOPMENT
A. Background. The Clean Air Policy was originally adopted by the Oneida Business by motion on May
25, 1994, and then amended through resolutions BC-02-24-10-I, and BC-05-28-14-A. The purpose of
the Clean Air Policy is to provide a healthy working and learning environment within buildings and
vehicles owned and operated by the Nation by prohibiting smoking. [4 O.C. 411.1-1]. It is the policy
of the Nation to commit to promoting health and wellness in all forms, by prohibiting smoking. [4 O.C.
411.1-2].
B. Request for Amendments. On January 10, 2023, the LOC received a request from Retail to consider
amendments to the Clean Air Policy to create an exemption for the prohibition from smoking in any
building of the Nation for smoking cigars and tobacco in pipes within a premise designated by retail as
a tobacco store, on or in premises controlled by Oneida Retail, that sells tobacco product and in which
the smoking of only cigars and tobacco in pipes is permitted. The Legislative Operating Committee
added the Clean Air Policy amendments to its Active Files List on January 18, 2023.

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SECTION 3. CONSULTATION AND OUTREACH
A. Representatives from the following departments or entities participated in the development of the
amendments to the Clean Air Policy and this legislative analysis:

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2024 02 14
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 Oneida Law Office;
 Gaming;
 Retail;
 Comprehensive Health Division; and
 Environmental, Health, Safety, Land, and Agriculture Division.
B. The following laws were reviewed in the drafting of this analysis:
 Oneida Personnel Policies and Procedures.

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SECTION 4. PROCESS
A. The development of the proposed amendments to the Clean Air Policy complies with the process set
forth in the Legislative Procedures Act (LPA).
 On January 18, 2023, the Legislative Operating Committee added the Clean Air Policy
amendments to its Active Files List.
 On February 1, 2023, the Legislative Operating Committee approved the draft of the proposed
amendments to the Clean Air Policy and directed that a legislative analysis be developed.
 On July 10, 2023, the Legislative Operating Committee approved the updated draft and
legislative analysis.
 On October 4, 2023, the Legislative Operating Committee readded the Clean Air Policy
amendments to its Active Files List for the 2023-2026 legislative term.
 On November 1, 2023, the Legislative Operating Committee approved the public meeting
packet for the Clean Air Policy Amendments with noted change to the public meeting notice,
and forwarded the Clean Air Policy Amendments to a public meeting to be held on December
15, 2023.
 On December 15, 2023, the public meeting was held. Two (2) individuals provided oral
comments during the public meeting.
 The public comment period was held open until December 26, 2023. Four (4) individuals
provided written comments during the public comment period.
 On January 3, 2024, the Legislative Operating Committee accepted the public comments and
the public comment review memorandum and deferred these items to a work meeting for
further discussion. The Legislative Operating Committee held a work meeting to review and
consider the public comments later this same day.
 On January 17, 2024, the Legislative Operating Committee approved the updated public
comment review memorandum, draft, and legislative analysis; and approved the fiscal impact
statement request memorandum and forwarded the relevant materials to the Finance
Department directing that a fiscal impact statement be prepared and submitted to the LOC by
January 31, 2024.
 The Finance Department provided the fiscal impact statement on January 30, 2024.
B. At the time this legislative analysis was developed the following work meetings had been held
regarding the development of the amendments to this Law:
 January 26, 2023: LOC work session;
 February 20, 2023: LOC work session with the Comprehensive Health Division and the
Environmental, Health, Safety, Land, and Agriculture Division; and
 March 20, 2023: LOC work session with the Comprehensive Health Division, Retail, Gaming,
Oneida Law Office, and the Environmental, Health, Safety, Land, and Agriculture Division.

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October 18, 2023: LOC work session.
January 3, 2024: LOC work session.
February 1, 2024: LOC work session.

SECTION 5. CONTENTS OF THE LEGISLATION
A. Exemptions to the Prohibition of Smoking. The proposed amendments to the Clean Air Policy include
a new exemption to the prohibition of smoking, which is a tobacco store, on or in premises controlled
by Oneida Retail, that sells tobacco product, unless prohibited by Oneida Retail or the terms and
conditions of the lease or land or building assignment. [4 O.C. 411.4-2(b)(3)]. Previously, the Clean
Air Policy only included exemptions to the prohibition of smoking for cultural usage, all gaming areas
in any building of the Nation, and residential buildings that are owned by the Nation. [4 O.C. 411.42(a)-(b)(1)-(2)]. The proposed amendments also provide clarification that the exemption for residential
buildings owned by the Nation only applies i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A21ae7c887414daaa. Public record. Not legal advice.