In the waning days of the election, we were asked by employers, from an employment law perspective, what the passage of Measure 91, which legalizes recreational marijuana use in Oregon, would mean for their business and their drug policies. With Tuesday night’s results, the issue hits home with a bit more impact.
Many employers have adopted a zero tolerance drug and alcohol policy, which prohibits employees from the illegal use of drugs, including marijuana (even when prescribed). Many workers are under the impression that Measure 91 will force employers to change those policies. Are they right?
There is good news for employers. Measure 91 specifically provides that the law shall not be construed: “To amend or affect in any way any state or federal law pertaining to employment matters.” Given that the measure does not change existing law, the existing law in Oregon is quite favorable for employers who wish to enforce their zero tolerance policies. In 2010, the Oregon Supreme Court looked at whether an employer was required to continue to accommodate a worker who tested positive for marijuana, which the employee was using for medicinal purposes per a medical marijuana card. In that case, a steel company fired an employee who tested positive for marijuana. The employee sued, arguing that the company was required to accommodate his disability by making an exception to its drug and alcohol policy. In upholding the company’s zero tolerance policy, the Court reasoned that marijuana is still a Schedule I controlled substance under the Federal Controlled Substance Act, along with cocaine, heroin and other drugs that have no medical use. In other words, use of marijuana, even if used for medicinal purposes, remains illegal under federal law.
The Court’s 2010 decision allows employers to enforce their zero tolerance policy even though medical marijuana is legal in Oregon. In the steel company case, the Court could have held that an employer’s obligation to accommodate an employee’s disability supersedes the employer’s right to impose a zero tolerance drug policy (in fact, the Oregon Court of Appeals did just that prior to the Supreme Court’s decision). Instead, the Court upheld the zero tolerance policy, because the use of medical marijuana is illegal under federal law. The same analysis should apply to recreational marijuana, where there is an even weaker justification for tolerating an employee’s use of marijuana. Moreover, in some industries, such as for certain federal contractors, you may be required to certify that certain employees or your entire workforce is drug free, including marijuana.
Another way to think about employee’s use of marijuana is that there are many activities that are perfectly legal, but might still result in an employee getting terminated, if the employer can show a reasonable business justification. After passage of Measure 91, recreational use of marijuana will be lawful under state law. But, employees may still be fired for using it, even if the use is on the employee’s own time, because employers have an interest in requiring employees to follow federal drug laws and are rightfully concerned about safety, productivity and other job requirements that may be affected by employee drug use.
Employers should have their drug and alcohol policies regularly reviewed and discuss the risks of enforcing those policies with legal counsel. But, the good news is that because marijuana use remains illegal under federal law, at least for now, employers can continue to enforce their zero tolerance drug and alcohol policies. For questions about these legal developments or other issues of interest, please contact our Saalfeld Griggs Employment Law Team. Follow us on LinkedIn and on Twitter @sgEmploymentLaw.
The information contained in this report is current as of November 7, 2014 and is not intended as legal advice.