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Marijuana Use and Work Still Don't Mix

Daily Journal of Commerce
July 2, 2015


Oregon's Measure 91 will go into effect July 1. It allows personal, non-public use and possession of small amounts of marijuana. What does this mean for employers? Not much. An employer can prohibit an employee from coming to work high, just like it can prohibit an employee from coming to work drunk. Impairment is impairment. Keep an eye out for changes in the laws as Measure 91, and perhaps marijuana use, becomes more socially acceptable. The following points can help employers prepare for those changes.

1. Despite Measure 91, employers do not have to accommodate a disabled employee's marijuana use.

Measure 91 expressly states that it does not affect state or federal employment laws or the Oregon Medical Marijuana Act. Under Oregon's Medical Marijuana Act, some disabled employees have attempted to persuade courts that an employer should accommodate their off-duty use of marijuana by allowing them to continue working (or to escape discipline) if they test positive for marijuana in violation of the employer's drug and alcohol policy.

The Oregon Supreme Court has held that employers have no such obligation to make exceptions to their policies or otherwise accommodate a disabled employee's marijuana use. This is true, in part, because marijuana is illegal under federal law. The law makes sense because the sophistication of marijuana testing makes it difficult to identify if an employee is impaired. An employee could say he or she smoked marijuana the night before, and the employer currently has no way to verify. Because Measure 91 expressly does not affect state or federal employment laws, the law should remain that an employer has no obligation to allow a disabled employee to fail its drug test.

2. Over time, the law may change if federal law changes and social attitudes change.

Measure 91 contains language that appears to be intended to get around the Oregon Supreme Court's ruling. And although marijuana is illegal under federal law, the federal government is currently refraining from enforcing that law. If recreational use results in a shift of public opinion and/or federal law and testing improves such that employers can more accurately test for current impairment, a future court could hold that an employer must accommodate a disabled employee's off-hours marijuana use. Even if a change does occur, it will not be immediate.

3. Federal contractors and federal grant recipients must continue to comply with federal laws.

Measure 91 expressly does not require anyone to break federal law, exempt a person from federal law, or change a federal contractor's obligations under a federal contract or a federal grant recipient's obligations under a grant. Therefore, companies that are required to comply with federal drug-free workplace laws must continue to do so.

4. Review drug and alcohol testing policies and procedures.

Federal contractors, federal grant recipients, maritime industry employers, the manufacturing industry, drivers regulated by DOT, and employers with other safety-sensitive positions, such as in construction, may need to maintain a zero tolerance drug and alcohol policy. A company that employs a zero-tolerance policy should review it and:

• Do not use an "under the influence" standard. Rather, use a "no detectable amount" standard. Therefore, any positive urine test could result in discipline up to and including termination.

• Use random testing in addition to post-accident and reasonable suspicion testing.

Other employers may wish to have more tolerance. If so:

• Consider an "under the influence" standard or a mixture of an "under the influence" and a "no detectable amount" standard. For certain drugs, any detectable amount could result in termination, but for others the employer could have the discretion to reasonably discern impairment.

• Consider blood or breath tests. Blood tests allow the employer to more accurately test for impairment. If a company decides to include the option of blood tests, be sure to include a notice that the employer may use a blood test. Otherwise, a blood test could be considered an invasion of an employee's privacy. Reportedly, a breath test is coming out soon that is claimed to test current impairment without the invasion and expense of a blood test.

• Remember that even with a tolerance policy, possession, distribution and use at the workplace should be prohibited. Marijuana is still illegal under federal law.

• Ensure no safety risks and no federal contracts or grants.

• Consider limiting testing to only post-accident or reasonable suspicion.

For all drug and alcohol policies, consider the following in light of Measure 91:

• Call it a "drug and alcohol policy," or something similar. Avoid calling it an "abuse" policy.

• Clearly state that it covers drugs illegal under local, state or federal law.

• Explicitly state that marijuana, cannabis extracts or cannabis-related substances including synthetic marijuana are prohibited. Employees are confused because of Measure 91. Make it clear.

• Include a prescription drug policy to avoid an employee arguing that he or she has a "prescription" for marijuana. Employees may not use prescription drugs that may cause impairment, or use (or test positive for) drugs for which they do not have a prescription.

5. Update the driving policy

Measure 91 includes a specific provision prohibiting marijuana use while driving. Revise policy to prohibit marijuana use in company vehicles or while driving on company time.

As published Daily Journal of Commerce, June 23, 2015


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