The Inside Track: I-502 and its impact on Oregon employers

Biggs CEO, President, Greg SeifertAmericans are spending more than ever for health insurance, according to a study from the federal Agency for Health Research and Quality. The agency's researchers found that the average group insurance premium was $4,940 for one person last year – more than double the price paid in 1996, and up approximately 10 percent from 2011.

For starters, marijuana is still illegal under federal law. The fact is that this drug is a regulated substance (schedule 1) under the federal Controlled Substances Act. Although local voters approved the Oregon Medical Marijuana Act (OMMA) in November 1998, it is still a controlled substance under state law. The focus of the OMMA is to protect medical users from criminal prosecution; that law does not address the use of the drug within the employment context.  

What does all of this mean for employers? In both Oregon and Washington, you do not have to accommodate marijuana in your workplace, and that includes the presence of the drug in the system of the employee. In short, you can terminate them if they test positive. State courts in both jurisdictions have found that employers are permitted to discipline or even terminate medical marijuana users who violate workplace drug policies.

Employers continue to have legitimate reasons (zero tolerance, workplace safety, and the like) for implementing and applying policies prohibiting employees from using marijuana at work and for requiring that employees not have traces of marijuana in their system. You can continue to apply your zero tolerance drug and alcohol policies, drug testing policies and prohibitions against the possession of the drug on company property.

To avoid any confusion as to how your workplace policies apply to recreational or medically authorized use, we recommend that your policy be issued in writing to applicants and employees, and that it clearly indicates that the use of marijuana – for any purpose – is prohibited just as other controlled substances are.  Further, your policies should prohibit any detectable levels of the drug.

As for testing, it should only be done pursuant to a written policy that was provided to employees. Oregon does give employers a lot of flexibility on how to test. For example, employers can test based on a trigger event like an accident; or test randomly; or when there is reasonable suspicion that someone may be under the influence of drugs while at the workplace. Again, it is important that employers lay out their policies in writing so that employees are on notice and know what to expect.

And, anyone interested in sampling marijuana for recreational purposes in Washington must still weigh the risk of whether such activity is worth their job. Just because someone can do something, does not mean that they should.

Clarence Belnavis is a partner in the NW Regional office of labor and employment law firm Fisher & Phillips LLP. He has substantial experience handling various types of employment litigation including disability, racial, and gender discrimination; retaliation; sexual harassment; and wrongful discharge. He also represents employers in wage and hour claims, employment class actions and traditional labor matters. He can be reached at (503) 242-4262.