Oregon voters passed Measure 91
November 17, 2014

Introduction
 
Last week, Oregon voters passed Measure 91, a state initiative that legalizes recreational use of marijuana in Oregon.  As of July 1, 2015, Oregon law will allow adults to possess up to one ounce of marijuana in public places and up to eight ounces of marijuana in their homes, without threat of criminal liability.
 
Does the passage of Measure 91 impact the actions Oregon employers can take if an employee’s use of marijuana violates an employer’s substance abuse policies?  Quite simply, the answer is “no.”  Employers with “zero tolerance” substance abuse policies may continue to legally enforce those policies regardless of Measure 91.  However, some employers may wish to adopt less-stringent policies in light of the practical reality that the passage of Measure 91 will likely spark an increase in the overall number of marijuana users in Oregon.  Accordingly, employers with substance-abuse policies should consider whether and how they want their policy to apply to employee marijuana use.  In some cases, this may require the employer to modify an existing substance-abuse policy or create a new, “carve-out” policy specific to marijuana.  This article details some of the different options employers have in implementing and carrying out substance-abuse policies after Measure 91.  
 
Zero-Tolerance Policies
 
Under a 2010 Oregon Supreme Court decision, employers with zero-tolerance substance abuse policies may legally enforce those policies against employees who use marijuana, regardless of whether the employee’s use is legal under state law.  In that case (Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 348 Or 159 (2010)), the court explained that because marijuana possession remains illegal under federal law, an employee who uses marijuana in Oregon is still considered to be engaged in “the illegal use of drugs,” and employers are free to discharge them for that reason.  Accordingly, the Emerald Steel court held that an employer was not obligated to reasonably accommodate an employee’s use of medical marijuana, even though that use was permitted under Oregon’s Medical Marijuana Act.
 
The passage of Measure 91 does nothing to change the legal effect of the Emerald Steel decision.  Just as employers are not required to accommodate employee use of medical marijuana, employers will not be required to accommodate their employees’ recreational use of the drug come July 1, 2015, insofar as the use violates the employer’s policy.  So long as possession of marijuana remains illegal under federal law, Oregon employers who have zero-tolerance substance abuse policies may continue to legally enforce them against marijuana-using employees.  
 
Alternative Substance Abuse Policies
 
While strict substance abuse policies may continue to suit the needs of some employers, other employers may wish to adopt more flexible policies regarding employee use of marijuana.  Employers who continue using zero-tolerance policies must enforce those policies fairly and equivalently.  Consequently, a strict no-drug policy may result in an employer being forced to terminate an otherwise exceptional employee who admits to or tests positive for marijuana.  To avoid that result, Oregon employers may wish to adopt drug policies that provide exceptions for certain kinds of marijuana use.  For example, an employer may find it beneficial to have a drug policy that allows employee use of marijuana for medical and/or recreational purposes so long as the use occurs entirely outside of working hours and off the employer’s premises.  Most employers are free to adopt such alternative policies despite the federal laws prohibiting possession of marijuana, as private employers are generally not required to enforce federal marijuana laws in the workplace.  (There are some important exceptions, such as transportation companies subjected to Department of Transportation regulations, which do not have the option of permitting off-duty marijuana use.)
 
In other words, while employers may terminate or discipline employees who admit to or test positive for marijuana use, they are by no means required to do so.  Rather, employers may maintain a medical marijuana and/or recreational marijuana exception to their substance abuse and drug-testing policies if they so choose.  If an employer does choose to carve out such an exception, it should clearly explain the policy to employees and notify employees that the policy exception does not obligate the employer to provide the type of “reasonable accommodation” that would be required under Oregon’s disability laws.  The best way to do this is to have a written marijuana policy in place and distribute it to employees before the new laws take effect on July 1, 2015. 
 
One middle-ground option that may appeal to many employers is to accommodate medical marijuana use, but continue to treat employees’ recreational use of marijuana as a violation of the company’s substance-abuse policy.  A medical-marijuana policy that is effectively a “carve out” from a larger company policy that otherwise prohibits the use or possession of controlled substances should:
 

  1. Be limited to employees who present proof of a valid “registry identification” cards authorizing use of medical marijuana;
  2. Prohibit employees from bringing marijuana to work or possession marijuana on the employer’s premises at any time;
  3. Prohibit employees from reporting to work under the intoxicating influence of the drug;
  4. Limit accommodations to employees whom the employer determines in its sole discretion: (a) remain able to perform the essential functions of their current jobs effectively and safely; or (b) can be transferred to another position that they can perform effectively and safely;
  5. Alert employees that the employer reserves the right to transfer them to any other vacant position if it deems this to be the most appropriate accommodation in the circumstances (irrespective of whether the transfer would be a demotion);
  6. Reserve the right to discipline if the employee uses or possesses marijuana in a manner that is inconsistent with his health care provider’s recommendations, the conditions imposed by his medical marijuana card, or Oregon law;
  7. Specify that the employer will not accommodate an employee’s use of medical marijuana if the employer determines that offering or continuing such an accommodation might be inconsistent with an obligation imposed on the employer, or one of its customers, contractors, or clients, by federal law;
  8. Specify that, although the employer will attempt to accommodate the employee’s medical marijuana use if the foregoing conditions are met, no accommodation is guaranteed.  In other words, the policy should articulate that termination remains an option if the employer determines at any point, in its sole discretion, that there is no current available position that is appropriate for a medical marijuana user.

 
Obviously, if an employer determines that it wishes to accommodate recreational marijuana use, as well, not all of the foregoing provisions would be appropriate.  Nonetheless, they illuminate some of the important considerations for any employer that is considering accommodating marijuana use, in any form.  To take perhaps the most obvious example, adopting a policy that appears to condone working while under marijuana’s intoxicating effects could potentially expose an employer to significant liabilities if an intoxicated employee, a coworker, or a member of the public is injured during the employee’s performance of a potentially dangerous work duty (for example, operating heavy machinery).
 
Ultimately, an employer should consider the costs and benefits of accommodating marijuana use in the context of the specific environment in which it operates.  For example, employers involved in the use of dangerous equipment might decide that a zero-tolerance policy is the better approach for their company.  In any case, employers must ensure that any policy they adopt is enforced consistently and equably among employees.
 
Conclusion
 
Measure 91 does not impact the existing rights of employers to enforce drug policies that prohibit employees from using marijuana.  That said, employers are entitled to adopt alternative drug policies that provide exceptions for certain marijuana use if they so choose.  In any case, employers should be prepared to discuss these issues with their employees to ensure that employees clearly understand the employer’s policy on marijuana use and what will be expected of them come July 1, 2015.

Co-authored by Dan Webb Howard, Karianne R. Conway and William H. Martin

DISCLAIMER: The information in this article is offered for general information and educational purposes only.  It does not constitute legal advice and does not create an attorney-client relationship.  You should not act on the information in this article before seeking the advice of an attorney.

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