Employment Law Update: After Measure 91, is Marijuana Just Another Legal Drug?

By Randall Sutton, Saalfeld Griggs PC

As financial services employers are well aware, the legalization of marijuana for recreational use poses new challenges for banks wishing to maintain a drug free workplace. If the experiences of Colorado and Washington are any indication, Oregon is likely to see a significant increase in the number of employees testing positive for marijuana. In the year following legalization in both states, positive tests increased by over 20% according to a recent study by a national testing lab. Moreover, the decriminalization of marijuana and resulting drop in prices, combined with tightened controls on prescription drugs, has led to a surge in the manufacture and importation of heroin into the United States from Mexico. Given the confidential and sensitive nature of most jobs performed in the banking industry, these developments make an enforceable drug and alcohol policy and testing program more important than ever.

The recent change in the law has also brought changes to perceptions and expectations about marijuana use, particularly on the question of whether the drug should be subject to looser regulation by Oregon employers. As of July 1 of this year, marijuana will join alcohol as the only legal intoxicants that can be used recreationally. Given the significant change in the law, employees may erroneously anticipate that employers should treat marijuana use similar to alcohol use. Under Oregon law, banking employers should not test for alcohol use unless a trained individual determines that the employee is presently (and visibly) under the influence. Employees may believe that after July 1, 2015, they may use recreational marijuana away from work so long as they do not appear to be under its influence while at work.

However, testing protocols and Oregon employment laws treat marijuana very differently than alcohol, and the new law allowing recreational use does nothing to change that. Marijuana is fairly unique among the drugs typically included in an employment-related test. Unlike other drugs, which leave the employee’s system in a matter of hours or days, THC (the active ingredient in marijuana) is stored in fat cells in the body and tests may be positive even weeks or months after the employee’s last use. Second-hand smoke can also trigger positive results, but testing cutoff protocols are intended to screen out results that arise solely from spending time around pot-smoking friends or colleagues. In any event, marijuana is unlike alcohol because there is no recognized test to determine whether your employee is presently impaired by marijuana.

Not only are testing protocols different between alcohol and marijuana use, but Oregon laws treat them differently—even after legalization of recreational marijuana. Since Prohibition ended in the 1930s, alcohol has been legal at the federal level. In contrast, marijuana continues to be illegal under federal law. For employers, this distinction is critical. Given that federal law continues to identify marijuana as a Schedule I controlled substance with no accepted medical use, the Oregon Supreme Court held in a 2010 decision that Oregon employers can enforce zero tolerance policies, even against authorized medical marijuana users. Measure 91 does little to change that holding, as the new law specifically does not “amend or affect in any way any state or federal law pertaining to employment matters.”

In other words, Measure 91 does not require that Oregon employers abandon zero tolerance drug and alcohol policies or make significant changes to testing protocols. But, in light of changing perceptions about the drug, we recommend that our banking clients update their policies to address the issue of recreational marijuana use and make it clear that the drug is still illegal under federal law and prohibited under the bank’s drug and alcohol policy.

This is also a good time to ensure that your drug and alcohol policy strictly complies with the myriad of complex drug testing legal requirements. In Oregon, there are restrictive regulations governing whether or not a termination resulting from a positive drug test affects the employee’s ability to collect unemployment benefits, and it can be challenging to win unemployment appeals if the bank’s policy is not sound and all regulations are not followed. For these reasons, banking employers should work with employment counsel to review and update their drug and alcohol policies before marijuana is decriminalized on July 1st.

Saalfeld Griggs PC is a law firm serving financial institutions throughout Oregon and Washington. Randall Sutton is the partner in charge of the firm’s Employment Law and Litigation Practice Group. www.sglaw.com