On Nov. 4, 2014, Oregon voted to decriminalize, regulate, and tax the production, delivery, and possession of marijuana. Oregon joins Alaska, Colorado, Washington, and Washington, D.C. in legalizing recreational marijuana use. For employers, the main thing to remember is that the recently passed initiative does not “amend or affect in any way any state or federal law pertaining to employment matters.” Ballot Measure 91, § 4(1) (2014).
Nevertheless, employers should revisit their personnel policies and drug testing programs, revise them if needed, and communicate with their employees about the impact of this initiative on their workplace. For example, drug and alcohol policies may continue to prohibit marijuana use by employees, and employers may continue testing employees for marijuana. Whether it results from on-duty or off-duty use, a positive test for marijuana can support disciplinary action (including termination of employment) pursuant to well-written policies. Furthermore, as marijuana remains illegal under federal law, federal contractors and grantees need to continue to treat marijuana as an illegal drug under their Drug Free Workplace policies.
Before the Nov. 4 initiative, Oregon’s Medical Marijuana Act, ORS §§ 475.300–346, authorized the medical use of marijuana. The Medical Marijuana Act ultimately had little impact on many employer drug testing policies because the Medical Marijuana Act stated that it was not intended to require employers to accommodate medical marijuana use. ORS § 475.340(2).
Of course, unresolved issues remain. New legal arguments based upon discrimination, privacy, and public policy theories continue to develop as employees and prospective employees look for ways to challenge terminations and hiring decisions. To date, employees have generally been unsuccessful, but theories continue to evolve. See e.g., Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. 2011); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Ca. 2008).
Employers and employees should keep in mind that federal law still treats marijuana as an illegal drug (e.g. controlled substance). Federal agencies have made it clear that they will continue to enforce federal law in highly regulated industries, regardless of the DOJ’s position regarding prosecution of medical marijuana users. See e.g., U.S. Department of Transportation, DOT 'Medical' Marijuana Notice (explaining the DOJ position “will have no bearing on the Department of Transportation’s regulated drug testing program”).
So what should employers do? First, review their policies and procedures for drug testing to make sure definitions still make sense. If an employer has not been testing, it may wish to consider doing so as marijuana use is expected to increase with decriminalization. Educate employees that the law does not change anything with respect to the employer's policies and that they may not be impaired by or possess or use at work.