As of July 1, 2015, Oregon law now allows adults to lawfully use marijuana for both medical and recreational purposes. Many employers have already faced questions from employees about the impact of the state’s new marijuana law, and many more will face such questions in the coming weeks and months. With that in mind, below is a brief Q&A (based on real questions from employers and their employees) to address some of the most common issues.
Q: Does my business need to allow an employee to smoke or otherwise ingest marijuana at work or on company time?
A: No. Decriminalization of marijuana under state law is just that—decriminalization. The legal change does not affect employers’ abilities to enforce their policies or require employees to follow lawful instructions on workplace conduct.
Q: An applicant/employee tested positive for marijuana as part of a drug screen, but claims to have a validly issued medical marijuana card. Does that mean we cannot reject the applicant or fire or otherwise discipline the employee?
A: No. The Oregon Supreme Court decided in Emerald Steel Fabricators, Inc. v. BOLI that Oregon’s disability law does not protect an applicant or employee who engages in the illegal use of drugs. Because marijuana remains illegal under the federal Controlled Substances Act, employers have no duty to engage in an interactive process or to accommodate an employee’s drug use in violation of their drug policy.
Q: An applicant/employee tested positive for marijuana as part of a drug screen, but stated that he lawfully used marijuana for recreational purposes in the privacy of his home yesterday. Does that mean we need to overlook the violation and cannot enforce our drug policy?
A: No. The rational that guided the Oregon Supreme Court in Emerald Steel is equally, if not more, applicable in the context of recreational marijuana. Employers may treat an applicant or employee who fails a drug test for marijuana, whether medical or recreational, like any other applicant or employee who fails a drug test.
Q: Our drug and alcohol policy does not specifically reference medical or recreational marijuana. Does that mean we cannot prohibit its use in the workplace?
A: No. Decriminalization of marijuana under state law does not mean employers must allow employees to ingest substances that may affect their ability to work or to work safely. Nor does it mean employers must allow employees to use drugs that violate federal law. However, the policy should be updated to reference medical and/or recreational marijuana use in the workplace.
Q: An employee told me he read on the Internet that businesses can’t discriminate against workers because they use marijuana now that it is legal in Oregon. Is that true?
A: No. Treating people differently because they are violating a lawful drug policy or otherwise failing to follow lawful instructions from an employer regarding drug use may be “discrimination,” but it is the lawful kind.
Q: An employee told me he has a legal right to smoke marijuana where other people smoke cigarettes. Is he right?
A: No. Again, decriminalization of marijuana does not require employers to overlook policies or allow employees to reject lawful instructions on workplace conduct. Further, the Oregon Supreme Court has already decided that, even if an employee uses medical marijuana to treat or alleviate the symptoms of a disability, employers are not obligated to allow employees to violate drug policies as an accommodation for the disability.
Q: An employee told me his lawyer said he could not be disciplined for using marijuana outside of work. Is this true?
A: No. An employee may be disciplined for violating your company drug and alcohol policy regardless of whether the marijuana use occurred outside of work.
Q: An employee insists he has a legal right to use marijuana outside of work. Is that right?
A: Yes, but that right is far from absolute and there may be consequences. Oregon law now allows possession of certain amounts of marijuana and recreational use in non-public places without violating state criminal law. However, employees may still be disciplined for violating your company drug policy.
Summary
The short answer to almost every question about how Oregon’s recreational marijuana law impacts employers’ abilities to run their business as they see fit is that it doesn’t. With that said, employers should ensure that their drug and alcohol policies are up-to-date, that they expressly reference both medical and recreational marijuana, and that policies prohibit not simply the “use” of a substance or impairment by a substance, but also the mere presence of a prohibited substance in applicant’s or employee’s system.
Sean M. Driscoll is of counsel in the Portland office of Ogletree Deakins.
