Measure 91 Passed – Is My Drug-Free Workplace Policy Up In Smoke?

Plenty of employers seem “dazed and confused” after the recent vote to legalize marijuana. In light of Measure 91 passing, what are some issues for private-sector Oregon employers to consider?

First, a few key parts about this new law: it doesn’t take effect until July 1, 2015. Yes, it legalizes the possession and use of marijuana for adults 21 and older, with limitations. But it does not mean marijuana must be “accommodated” or tolerated by employers. In fact, the new law specifically says it is not to be construed to “amend or affect in any way any state or federal law pertaining to employment matters.” (See Ore. Measure 91, Sec. 4(1), or call your lawyer for details.)

Another perspective to keep in mind: most employers can benefit from a drug/alcohol testing policy. Why not reserve the right to test if, say, an employee shows up on the job with alcohol on his/her breath and slurred speech? Nothing about this new law changes the fact that drug testing (including options such as reasonable suspicion, pre-employment, periodic and/or random drug testing) can help save many employers from headaches and performance problems, and even help reduce or avoid accident-related liability, too. Savvy employers work with employment law counsel to craft the policy/approach that’s best suited for their particular workplace, and to give their employees plenty of notice before implementing changes to their policies.

Now (not next summer!) is the time to address your policy in light of the new law. Here are some thoughts to help start that conversation.

Do I need to change my “no tolerance” drug/alcohol policy, in light of Measure 91? No, but it may help to clarify your policy, and to send a message to your employees.

Oregon employers still have the right to enforce their drug testing policies: Oregon law on pot may be changing, but it doesn’t mean you have to tolerate its use as an employer. Many employers’ policies, however, could probably use a tune-up in light of this new law. Common problems include, for example, broad references to “illegal” drugs. If you want to keep screening for marijuana use or intoxication, it could help to clarify in your policy that marijuana is included in your drug testing/screening processes. Consider a documented (email or other) reminder to your employees on this subject, too, confirming that you understand pot is still illegal under federal law and that your policy is still in effect. These proactive steps can help manage employee expectations and erode any argument that “you invaded my privacy!” by simply implementing your drug testing policy.

Should we “lighten up” about marijuana—i.e., should we stop drug testing? Probably not. If you had good reasons for drug testing in the first place (workplace safety/health, etc.), we doubt that this new law somehow takes those reasons away.

If you were to stop any drug testing that could reveal off-duty marijuana use, that could be a morale boost in some workplaces. But employers considering being more relaxed about marijuana should consider a host of accompanying downsides to that approach. For example, if you start ignoring positive marijuana tests (or stop any drug testing at all), how might that impact the company if an industrial or other accident occurs? A plaintiff’s attorney could make a decision to “turn a blind eye” sound like a reckless approach to workplace safety, for starters. Finally, if you’re still considering being more flexible on this issue, consider testing options designed to catch only more recent or current marijuana use—and talk to your lawyer first.

What if my employee has a medical marijuana card? Or put another way, do you—as an Oregon employer—have to “accommodate” medical marijuana? No, likely not.

For background, both the federal Americans with Disabilities Act (applies to those with 15 or more employees) and Oregon Disability Law (applies to those with just 6 or more employees) require employers to make reasonable accommodations for qualified individuals with disabilities, so long as it’s not an undue hardship or “direct threat” to employee safety. Both laws have been greatly expanded in recent years, too. Many more employees are now covered as “disabled.” But the Oregon Supreme Court has confirmed that employers are not required to accommodate use of medical marijuana. (See its 2013 decision, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries. Washington employers have a similar decision from their state’s court, too.) That decision should still apply, unless/until the Court decides to revisit the issue.

Of course, some employers have considered making exceptions for medical marijuana use. As with any exception, be mindful of safety/business risks and the possibility of exposure to claims for discrimination. Consistency is key: if you’re granting the exception for some but not all employees, that can create an opportunity for an employee to argue they were treated poorly based on a discriminatory motive. And even if an exception is allowed, don’t forget the other (non-Oregon) drug testing regulations that could apply. For example, companies with federal contracts that meet certain criteria are subject to the Drug Free Workplace Act; and companies operating under the Department of Transportation must follow detailed drug testing criteria.

Bottom line: consider consulting with legal counsel to evaluate (and, if needed, update) your drug-free workplace policies and procedures, and to craft a message to employees, now, to stay ahead of this issue.