“I don’t do drugs, though. Just weed.” Dave Chappelle in “Half Baked”
On July 1, Oregon’s Measure 91 will allow adults over 21 to possess and use recreational marijuana. Some employees may believe the change in Oregon law creates a protected right to “get baked” regardless of their employer’s policy. That is wrong. Measure 91 does not limit an employer’s ability to establish and enforce workplace policies regarding marijuana use. Likewise, it will not limit an employer’s ability use drug testing for the purpose of detecting marijuana.
Using marijuana for recreational or medical purposes is not protected activity under state or federal employment laws. Marijuana is still illegal under federal law, and that is not likely to change anytime soon. Moreover, in certain circumstances federal and state law will impose a duty on an employer to maintain a drug free workplace.
Perhaps the most pressing impact of Measure 91 for employers will be to ensure employees understand that workplace policies have not changed and to correct any rumors about a new “right to get high” overheard while floating the Deschutes.
Employers should have well-established policies in place regarding what will not be tolerated. Now, more than ever, employers should be sure that such policies are up to date, understood by employees and easily accessible. Further, employers should confirm their policy does not conflict with state and federal laws regarding drug use and the workplace. For example, an employer designated as a federal contractor must maintain a “zero tolerance” policy regarding the use of drugs in order to comply with the Federal Drug Free Workplace Act.
In addition, employers that perform certain transportation functions must comply with the drug regulations set by the federal Department of Transportation. Finally, Oregon employers have a state and federal obligation to provide a safe workplace under the Occupational Safety and Health Act (OSHA). Under Oregon OSHA, “[a]nyone whose ability to work safely is impaired by alcohol, drugs, or medication must not be allowed on the job while in that condition.” (emphasis added). Contrary to the “Half Baked” quote at the beginning of the article, “drugs” under OSHA includes marijuana.
An employer should be especially cautious with regard to jobs involving complex processes or significant safety risks. In those circumstances it may not be enough to simply monitor employees for recent marijuana use, as the lingering impairment from marijuana lasts much longer than most think.
One study from Stanford found that marijuana may impair cognitive functioning more than 24 hours after use. That same study also indicated that users rarely realize they are impaired for more than a few hours. Bottom line: Measure 91 is not a green light to get high the night before complex or dangerous work activities.
Even before Measure 91, almost 10 percent of Oregonians admitted to recent marijuana use. Expect that number to increase after July 1, putting pressure on employers who may have trouble recruiting qualified employees willing to pick up a job offer requiring them to put down the joint. That may pose a hardship for employers that take a hard-line stance on off-the-job marijuana use.
For example, some in Central Oregon’s booming brew pub industry may find it practical to take a middle ground, restricting on-the-job drug use but not regulating off-the-clock bong hits. All of this is to say there is no one-size-fits-all answer to how employers should address the issue of recreational marijuana use. When setting drug and marijuana policy, employers have a number of options.
First, they are free to determine what conduct is prohibited and the degree of discipline for prohibited conduct. Second, they are free to set the basis for testing required of employees, or opt to not require testing at all. Third, employers may establish one set of policies covering employees performing safety-sensitive functions and a different set of policies covering employees who do not perform such functions.
In sum, Measure 91 did not change federal law or state employment law, but not all employees will understand that. Employers can—and should—determine and clearly articulate their drug policies and procedures. Those policies should reflect the needs of the employer and the practical implications for recruiting and employee retention. If increased recreational marijuana use is a particular concern for the employer, it should clear the air about company expectations to avoid losing valuable employees.
As for ensuring compliance with all of the laws in this area, employers in doubt should seek counsel from an employment attorney who can help develop a policy that complies with applicable laws while meeting the company’s unique operational needs.
Anthony Kuchulis wasa long time Central Oregon resident and attorney who recently joined the Portland law firm of Barran Liebman LLP, where he advises and represents employers on a wide range of employment and labor law issues. Contact him at 503-276-2199 or akuchulis@barran.com.
