When pot is legal in Oregon,employers don’t have to tolerate it
Oregon voters may have joined Washington in legalizing recreational marijuana use, but that doesn’t mean employers have to tolerate workers who fail drug tests or show up for work high, labor lawyers say.
“Not as much has changed as employers may think,” said Andrew Schpak, a Portland attorney who represents management in labor cases.
Marijuana possession and use is still illegal under federal law, he said. Companies that test for drug use as a condition of employment and that enforce drug-free workplaces don’t have to change their policies, Schpak said.
Washington voters legalized pot in 2012 and Oregon voters did the same in the Nov. 4 election. Users can legally buy marijuana in Washington now; Oregon’s law allowing the possession, use, production and sale of pot goes into effect July 1, 2015.
Schpak said companies should tell employees: “Even though our state has legalized or voted to legalize marijuana, we’re not changing our policies.”
A reminder would be wise “Just to make sure on July 1, 2015, they’re not showing up at work with a joint in their hand,” he said.
Schpak and Jenna Reed, general counsel with the Cascade Employers Association in Salem, said Measure 91 approved by Oregon voters did not contain provisions relating to job protections. That is, employers don’t have to tolerate lawful use. The issue has already come up with Oregon’s Medical Marijuana law, and courts have ruled employers do not have to allow pot use as an accommodation for a disability.
Legal “off duty” use of may be a point advocates press in future pot and employment cases. Schpak said Oregon has already decided employers can’t prevent the use of lawful tobacco products.
“Cigarette smoking off the job is protected,” he said. “That doesn’t apply to marijuana, but if it continues to pick up steam that could be a choice of where marijuana advocates go next. That’s an argument we might see.”
Reed, of Cascade Employers Association, said alcohol use is different because it is not illegal under federal law.
“Because of this important distinction, only alcohol use or impairment on the job can be prohibited,” Reed said in a news release.
“Because marijuana is still illegal under federal law, any employee testing positive, regardless of when they used, can still be considered a violation of your company’s policy.”
Reed also said employers can rescind a job offer if an applicant tests positive for pot, even if the worker wasn’t impaired at the time and argues that they lawfully used days before the test.
“This could be true, but it probably doesn’t matter,” Reed said. “Measure 91 doesn’t provide any job protections and it is illegal under federal law.”