Legislative Update: Employees and the use of Recreational Marijuana

Currently, the use of marijuana in Oregon can still cause employees to lose their jobs.  Even though recreational marijuana is legal in the District of Columbia and seven states besides Oregon—and medical marijuana is now approved in 28 states—there are currently no Oregon employment-related legal protections for using marijuana recreationally.


Oregon State laws pertaining to employment

Oregon state law protects citizens from state and local criminal prosecution for using, growing, and possessing marijuana. It does not offer employment protections. The Oregon Supreme Court decision in April 2010 in the matter of Emerald Steel Fabricators Inc. vs. BOLI held that employers do not have to accommodate an employee’s use of a drug deemed illegal by the federal government.


At present, employers can hire and fire based on marijuana use, even if that usage is on the weekend and not at work.


A new law, SB 301 that was introduced in the January 2017 Legislative session, if passed could prevent employers from not hiring someone for marijuana use during non-working hours. So, if it’s a legal substance, it would be illegal of an employer to discriminate against a user. Exceptions could still be made for a bona fide occupational qualification or in consideration of safety for others (performance of work while impaired) and would not apply to a collective bargaining agreement that prohibits off-duty use of the legal substance in question.


Watch your across-the-board incident drug tests

OSHA claims that having a blanket testing policy, to test anyone that files an injury or accident claim, can be perceived as retaliatory since it may silence workers who would otherwise report a workplace injury or accident. While an employer can use impairment to defend against a worker’s compensation claim, keep in mind that an effective marijuana impairment standard test does not currently exist since test results may indicate drug use but may not necessarily indicate “impairment.” If you have employees working in a position where they can hurt themselves or others, or in a safety-sensitive situation, it is imperative that you have a solid post-incident drug and alcohol policy in your handbook.


How to properly Post-Incident test.


The timing of SB301 is interesting because when coupled with the Occupational Safety and Health Administration (OSHA) 2016 ruling that clearly frowns upon blanket post-accident testing policies – DRUG TESTING is proving to be yet another complicated HR issue.


Drug and alcohol policy for your business

When it comes to crafting a drug and alcohol policy, there is no “one size fits all’ prototype. Your policy should outline who will be tested. Then stipulate when testing will be conducted—during the employee’s orientation/onboarding stage; upon reasonable suspicion of impairment; implementing random drug testing; or for post-accident/incident testing. Amidst all these regulatory and cultural changes, many employers have made the choice to keep their “no tolerance”; policies in place. Others are being a bit more creative by choosing not to test for marijuana but continue to test for other illegal substances. Yet others are choosing to bypass the pre-employment stage and elect to only test upon reasonable suspicion of impairment and post-incident.


It’s no secret that every aspect of running a business has some degree of risk. Because marijuana remains illegal under federal law some organizations may be a little bit more comfortable with the level of risk implementing a marijuana friendly policy. Your company policy should be customized to your business needs: it should include legal requirements for your industry; reflect typical safety and risk exposure of your worker’s duties, and match your organization’s culture. Make sure your policy is understandable and communicated to employees, and as with all workplace policies is uniformly enforced.


If this article has raised questions for you or you need a company drug & alcohol policy right now – give Cardinal a call. We offer HR consulting services, both ready-to-go and customizable employee handbooks; and if needed, you can even outsource your HR Department to Cardinal.

Don’t worry, we’ve got the workplace solution for you!