Recreational Marijuana and the Employer- Ballot Measure 91 Passed. Now What?

On November 4, 2014 Ballot Measure 91 was voted into law which allows recreational marijuana to be sold to adults that are 21 and older.   The passage of Measure 91 means that at the state level, in many instances, marijuana will no longer be illegal to use or possess. Now that it is being made legal, what do you do as an employer? 

Background: Should you still drug test? 

In many ways we are revisiting questions from 1998 when Oregon became the second state to legalize the use of medical marijuana with the passage of Ballot Measure 67.  Eventually the Oregon Bureau of Labor and Industries (BOLI) took a stance that essentially said voters wanted Oregonians to have access to medical marijuana and therefore employers should not discriminate against them based on the medicine they are legally taking under Oregon law.  (I should note that this is my own interpretation from my correspondence with the Labor Commissioner.)  My concern at the time was employers were unable to objectively conclude that an employee was under the influence of medical marijuana while working.  If someone is consuming alcohol a breathalyzer can determine what level of alcohol is currently in their bloodstream.  There is no breathalyzer test available to employers for THC and employers cannot do a blood test on employees.  Your only option is a passive test like a urinalysis.   A urinalysis shows what drugs an employee had or had not used in the past and does not determine if they are currently impaired for the drug that they have tested positive for.  This left the employer in the position choosing to err on the side of safety or ignore drug test results to avoid a potential wrongful termination suit.  This impasse was resolved when the case, Emerald Steel Fabricators vs BOLI was heard by the Oregon Supreme Court.  Essentially the Oregon Supreme Court concluded that since marijuana is a controlled substance under federal law that employers do not have to accommodate the use of an illegal substance (click here for a link to that decision).  With Measure 91’s passage it is likely that employers can rely on this decision to apply to recreation marijuana in the near future.  Additionally Measure 91 states that, “…this Act may not be construed: (1) To amend or affect in any way any state or federal law pertaining to employment matters.”  Stay tuned to Cardinal’s newsletters and we will advise you if there are any updates on the Federal Controlled Substance Act or BOLI’s position on employee use of recreational marijuana.

Should the employer rely only the Oregon Supreme Court’s decision that marijuana is a federally controlled substance?

In my letter to BOLI on medical marijuana my focus was on safety.  I believe this is still the best angle to approach this issue.  Employers have an obligation to provide a safe workplace (feel free to verify this with OSHA) which includes making sure your employees do not hurt themselves or others because they are impaired while working. Let’s look at two positions, a clerical employee and a forklift driver, to illustrate when you should apply drug testing.  In this example we assume the clerical employee never drives for work and a forklift driver works at a mill in close proximity to coworkers.  The clerical employee has a very limited ability to hurt themselves or others and thus does not need extra resources directed towards drug testing.  In fact, chronic use of marijuana (or any intoxicating substance) is going to be reflected in job performance and can be dealt with in that manner. A forklift operator can not only hurt themselves but also drives around with heavy loads balanced on forks that can hurt or kill others.  An employer without a drug policy and drug testing in place for the forklift driver exposes themselves to OSHA fines, increased workers’ compensation or general liability costs and even a potential civil suit from an injured coworker.

Who should you drug test?

Deciding which job classifications you are going to test are not going to be as easy as the examples provided.   When deciding what to do focus on the potential of employees to hurt themselves or others, the general public or even machinery or product.  Briefly document what you decide. 

What about drug testing still required by Federal law?

There are some jobs that require drug testing.   For example, truck drivers that fall under the Federal Department of Transportation rules should still follow those drug testing requirements.

When should I make changes?

Measure 91 does not go into effect immediately upon passage but on July 1, 2015.  But you should be working on your response to the change in the law before that date.

Do I have to accommodate use at work?

The short answer is no.  However if you terminate an employee for use at work you should protect yourself with an employee handbook with a drug and alcohol policy.  

Which drug tests are affected?  We do random, post-accident, pre-employment and reasonable suspicion testing?

Some, all or none may be affected depending what you decide to do for testing.  Once you make a decision on the need for which types of drug testing in which positions, be sure to document and enforce that policy across the board in like positions.

Arin J. Carmack

Risk Management