One Toke Over the Line: Marijuana Use Still a Fireable Offense in Oregon
Recreational marijuana use in Oregon becomes legal July 1. But state law still allows employers to maintain a drug-free workplace, including prohibiting recreational and medical marijuana use even when employees are off duty. (Photo by Chuck Grimmett/Creative Commons 2.0/ https://goo.gl/hreGlw)
By Larry Coonrod
LINCOLN COUNTY—Before celebrating the legalization of marijuana in Oregon come July 1, revelers should double-check their employers’ drug policy.
Oregon voters passed Measure 91 legalizing recreational marijuana in November 2014. The law takes effect July 1, when it becomes legal to possess and use small amounts of marijuana.
No Changes to Workplace Laws
“The text of Measure 91 has a section that explicitly states that it is not going to affect state employment law,” said Bureau of Labor and Industries spokesperson Charlie Burr.
“Oregon is an at will state and employers are still free to drug test in the workplace,” Burr said.
If results from Washington and Colorado post-legalization are any indicator, more than a few employees are in for a rude shock if they assume the law gives them carte blanche for marijuana use. According to Quest Diagnostics, one of the largest employee drug testing labs in the country, between 2012 and 2013 urine samples testing positive for marijuana increased by 20 percent in Colorado and 23 percent in
Washington after voters legalized the drug, but before the new laws actually took effect. By comparison, the national average increased 5 percent during the same time.
2010 Oregon Supreme Court Ruling Favors Employers
While recreational marijuana use is legal July 1, Oregon has had a medical marijuana program (OMMP) for years, and patients have long been denied the right to use the drug, even with a doctor’s prescription.
In 2010, the Oregon Supreme Court ruled in favor of a company sued by an employee with an OMMP card who claimed he had been discriminated against because of his disability after he admitted to using marijuana.
The Bureau of Labor and Industry had sided with the employee as did the Oregon Court of Appeals, which awarded the man back wages. In a 5-2 ruling overturning that decision, the Supreme Court justices essentially said that Oregon’s marijuana rules take a back seat to federal drug laws that label marijuana an illegal substance.
That 2010 ruling and Measure 91 essentially leave drug testing policy in the hands of individual employers.
“No Obligation to Accommodate Employees”
Randy Getman, area manager for Barrett Business Services Inc., addressed the Measure 91 issue with his clients shortly after it passed. Barrett, with 50 offices in 12 states, will continue drug testing employees hired on behalf of clients.
“Oregon employers are not obligated to accommodate employee usage of marijuana, even if it is for medical reasons and occurs off-duty,” he said. “New hires and current employees will still be required to pass any drug screen reasonably requested of them. THC - the drug in marijuana — will not be exempt.”
Getman said unless federal law changes to legalize marijuana, Barrett plans to continue its zero-tolerance policy.
“Pretty much nothing in BBSI’s policy and practice with respect to pre-employment, post-accident, random or for cause drug screens is going to be changed,” he said.
Federal Grants Constrain Public Employers
While Oregon law, for the most part, leaves drug testing policy (with some exceptions) to individual employers, public employers such as city, county and state governments are under the thumb of the federal government. Federal funding, which many public agencies either receive directly or indirectly, require a drug-free workplace.
Lincoln County Legal Counsel Wayne Belmont said the county does not allow the medical use of marijuana by employees in safety-sensitive positions such as road crews and plans to extend that policy to recreational marijuana as well.
“We have a number of federal grants and other funding that require us to have a drug free workplace,” he said.
Marijuana Use Detectable for Months
A frequent question is just how long marijuana is detectable. While the answer varies by the frequency of use, the potency of the drug and weight of the user, the short answer is that the most sensitive test, such as those using the subject’s hair can detect marijuana up to 90 days.
The bottom line for employees is that “Oregon is an at will state and employers are still free to drug test in the workplace,” says Burr, the BOLI spokesperson.
Feds Could Scrap State Marijuana Rules
Although federal drug laws still classify marijuana as a controlled substance, former U.S. Attorney General Eric Holder in 2013 said the Department of Justice would not oppose implementation of medical or recreational use of marijuana provided states put in place a strong regulatory system.
His successor, Loretta Lynch has continued Holder’s policy since the Senate confirmed her as attorney general in April. However, the fed’s hands off policy is at the mercy of the next administration.
New Jersey Gov. Chris Christie and presumptive Republican presidential candidate recently said he planned to crack down on states that legalized marijuana. Federal agents could for example resume targeting growers and suppliers.
Contact Reporter Larry Coonrod by emailing editor@lincolncountydispatch.com
