Legalized Marijuana Use: What It Means For Oregon Employers

November, 2014


On November 4, Oregon voters passed Measure 91 legalizing the recreational use of marijuana for individuals 21 and older. The law will not take effect until July 1, 2015.

What does this mean for Oregon employers? Here are the basic answers to the questions likely going through your head:

  1. Because the measure did not include any provisions relating to job protections, employers will still be able to enforce their drug and alcohol policies prohibiting marijuana use or possession in the workplace or being under the influence in the workplace. This is similar to the cases that have been decided under Oregon’s Medical Marijuana Act (OMMA). Like Measure 91, the OMMA did not include any job protections and the courts in Oregon decided that employers do not have to accommodate such lawful use. Essentially, your employees can lawfully use but if they choose to do so and end up with a positive drug test (pre-employment, reasonable suspicion, random, etc.) then it can still be considered a violation of your company’s policy.

  2. What about off duty use? Marijuana is an illegal drug under federal law in all 50 states. As such, even off-duty use or possession may result in violation of your company’s policy. This is an argument that has been successful in the medical marijuana cases as well.

  3. How is legal marijuana any different than alcohol? Alcohol is not illegal under federal law. Because of this important distinction, only alcohol use or impairment on the job can be prohibited. Because marijuana is still illegal under federal law, any employee testing positive, regardless of when they used, can still be considered a violation of your company’s policy.

  4. Can you rescind an offer of employment if an applicant tests positive for marijuana? Yes. Of course the applicant may argue that even though they tested positive, they weren’t impaired at the time of the test and that they lawfully used a few days ago. This could be true, but it probably doesn’t matter. Measure 91 doesn’t provide any job protections and it is illegal under federal law. Are you seeing a pattern here? Remember, employers cannot conduct pre-employment tests for alcohol because it is not an illegal substance and only use or impairment on the job can be prohibited. This also brings up another important distinction between alcohol and marijuana. Alcohol stays in your system a very short amount of time, and blood alcohol tests are tests of impairment, not detection. Most drug tests are tests of detection, not impairment. This is an issue that is still getting ironed out.

  5. If you are subject to federal regulations such as the FMCSA, FAA, DOT, etc. or are a federal contractor or subcontractor you need to comply with federal regulations which prohibit the use of marijuana under federal law.

What do you need to do and what should you expect?

  1. Update your drug and alcohol policy to include a specific statement on the use of marijuana and whether your company will prohibit such use. Remember, employers do not have to prohibit use outside of the workplace. Obviously, use or impairment in the workplace should still be prohibited. Just be aware of the potential consequences and think about where you are comfortable drawing the line. For example, your company may choose to test only if you have reasonable suspicion of present impairment on the job and not take any action for off duty use. Of course, watch out for #5 above.

  2. Provide reasonable suspicion training to all supervisors and managers before July 1, 2015 and on a regular basis thereafter.

  3. Employers should expect more positive tests, especially pre-employment. Many applicants (and employees) will be under the mistaken assumption that as long as they don’t come to work impaired, then there is no need to worry about their use impacting their job. See #1 above.

  4. Now, let’s get real for a second. It is just a matter of time before an applicant or employee gets an offer pulled or is terminated for their use outside of the workplace and files a lawsuit. This is inevitable. There are a few issues that the courts will likely need to decide at some point (like they did with medical marijuana). First, whether the fact that marijuana is illegal under federal law is enough to allow employers to prohibit lawful use under state law. The medical marijuana cases suggest the answer would be “Yes.” Second, the fact that Measure 91 didn’t specifically include job protections suggests the answer would be “Yes.” Finally, if (and that’s a BIG IF) the Oregon courts decide that employers cannot take action based on off-duty usage, then will employers be limited to testing only for reasonable suspicion and post accident/incident similar to alcohol testing? I think the answer to that would be “Yes,” but it certainly poses many more questions, including being able to test for impairment as opposed to just a test for detection.

  5. Finally, consider getting ahead of this issue. You may have employees who think that now that Measure 91 passed they can begin using today. Not true. It’s not lawful until July 1, 2015. Even then, if you intend to prohibit the use of marijuana according to your drug and alcohol policy, communicate this fact in writing to employees so they know the potential impact it could have on their job.

Cascade will explore this issue with more depth at our annual Compliance Update on December 4th in Portland and December 11th in Eugene. We will also continue to send out updates as this unfolds.

Of course, if you need any assistance updating your policies, drafting a notice to your employees or scheduling Reasonable Suspicion training, we’ve got you covered. Call us! We’d love to help you through this challenging issue.

 

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