6 Things All Oregon Employers Need to Know as Legal Marijuana Sales Take Hold
Oregon Govenor Kate Brown this week signed a measure allowing medical marijuana outlets to sell recreational pot starting Oct. 1. The move effectively allows sales of the drug, to all consumers, to begin. For businesses, it begs the question: Are Oregon companies, from employer standpoints, ready for this?
We put that query, and others, to Amanda Gamblin, a Schwabe Williamson & Wyatt employment attorney who has crunched the situation. Here's what Gamblin says on the matter.
What are the three things employers need to know about marijuana use as it pertains to employment law?
Just like workers can't come to work drunk, they can't come to work stoned.
Employers have the right to maintain a drug-free workplace and that goes for marijuana as well. And in fact, if employers are governed by federal law they are required to maintain a drug-free workplace. (For example, this applies to most employers in the maritime industry, drivers governed by the Department of Transportation, federal contractors and federal grant recipients.)
Employers should look at their drug and alcohol policy and make revisions as needed, including:
a. Defining prohibited drugs to include those illegal under federal law and expressly prohibiting marijuana, cannabis, cannabis extract and synthetic cannabis.
b. Notifying employees that various methods of testing may be used including urinalysis, blood testing, or breath testing (when it becomes available).
c. Ensuring that the policy prohibits possession and distribution of marijuana at work. Marijuana possession and distribution are still illegal under federal law and the employer does not want to be complicit in a violation of federal law.
Can employers ban the use of marijuana at work?
In general, are Oregon employers ready for legalized recreational marijuana?
For now, they are. Currently, Oregon law does not require an employer to change anything in response to this law. Some employees believe that things have changed and that they have been granted a "right" to smoke marijuana and bring it to work. That's not true. Marijuana is still illegal under federal law and bringing marijuana to work and distributing it is still a federal crime that most employers want no part of.
Furthermore, consuming marijuana is a statutory privilege that Oregonians have granted themselves (not a constitutional right). That privilege can be taken away if we prove ourselves too irresponsible to handle it. It serves both the employer's and the employees' best interest to put workplace safety first and leave the marijuana at home.
Will any of this change going forward?
Oregon employers will need to be aware of possible future changes in the law. Right now employers can terminate any employee who tests positive for marijuana on a urinalysis despite the fact that the test does not prove whether the employee is currently impaired. Even if the employee is disabled and uses marijuana only in off hours for medical reasons, he or she can still be disciplined or fired for testing positive.
This may change if and when a reliable, cheap method of testing current marijuana impairment becomes widely available. If that happens, which is expected, the law may require employers to use those testing methods at least with respect to disabled employees who use marijuana for medical reasons.
For now, however, there is no distinction between disabled workers who use medical marijuana and non-disabled workers who use marijuana recreationally. All workers who use marijuana at any time of the day or night any day of the week put their jobs at risk. If they test positive for marijuana, regardless of whether they were impaired at work, their employer has the right to discipline them up to and including the termination of their employment.
As published in Portland Business Journal, July 30, 2015