If You Like Your Drug Free Policy You Can Keep Your Drug Free Policy!

Oregon's recreational marijuana law goes into effect next week. What does this mean for employers? What can you do to protect your workplace? Three steps for prudent, take-charge Oregon employers are set out below.

Oregon Initiative Petition

Last November, Oregon voters passed Ballot Measure 91 authorizing recreational marijuana use. Medical marijuana has been authorized in Oregon since it was approved by voters in 1998. Ours is one of 23 states and the District of Columbia that "allow" medical marijuana and is the fourth state to "authorize" recreational marijuana.

Oregon did not "legalize" recreational marijuana or medical marijuana. It remains illegal under federal law. In fact, under the federal Drug-Free Workplace Act of 1988, employers that receive federal contracts or grants are required to maintain drug fee workplaces.

Employer Drug Free Policies

It is clear that Oregon employers can continue to prohibit employees from using marijuana recreationally or medically, even when they are not at work. In a medical marijuana case, Emerald Steel Fabricators, the Oregon Supreme Court held that Oregon employers do not need to accommodate medical marijuana use. Instead, they can continue to prohibit marijuana under their drug policies. The rationale the court used in that case applies to recreational marijuana as well.

Oregon employers, however, do not need to rely on the Emerald Steel Fabricators decision to prohibit marijuana use. Instead, Ballot Measure 91 specifically provides that it does not change employment law. Employers are not required to allow their employees to use marijuana.

Reasons for Prohibiting Marijuana

The law seems certain, at this time, that you can prohibit your employees from using marijuana if they want to work for you. But should you? The short answer is YES!

• Studies show that marijuana users are absent from work 78% more than non-users.

• Studies also show that marijuana users are 85% more likely to be injured at work.

• Other studies indicate that if a person uses marijuana regularly, their decision-making is far worse than if they did not.

• Marijuana use interferes with both memory and concentration, essential attributes required to perform most jobs competently and safely.

It is interesting to note than an analysis of 79 studies involving 6,462 patients published in the Journal of the American Medical Association yesterday, the researchers found that there is no proof that medical marijuana is effective for many of the illnesses for which it has been approved under state laws. An editorial in the same issue observes that state medical marijuana laws have been based on poor quality studies, patients' testimonials or other nonscientific evidence.

The politics of marijuana seem to be far ahead of the scientific understanding of its benefits, its risks and its side affects.

Finally, employers tell me that most of the problems in their workplace are caused by employees that have attendance problems, test positive on drug tests or both. For a specific example of this, see Drug Policy Works – Case History.

A zero-tolerance drug policy can reduce your number of problem employees. Changing that policy will almost certainly increase your employee problems.

Recommendations for Take Charge Employers

Whether employers allow marijuana use or not, Oregon's recreational marijuana law will create problems. Some employees may forget your drug policy or may not realize that you continue to prohibit its use even though it is now allowed by the state. Even if your employees are aware of your policy, with increasing social acceptance in Oregon, they may choose to violate your policy anyway.

There are three steps that prudent, take charge Oregon employers should follow.

Notify. Notify your employees that Ballot Measure 91 (goes into effect on July 1, 2015) specifically provides that existing employment laws have not changed. Employers can continue to prohibit marijuana use and can continue to require drug tests.

Explain. Explain the reasons why you are continuing to prohibit employee marijuana use. You can start with the effects on absenteeism, workplace injuries, decision-making, memory and concentration discussed above. If you are a federal contractor or receive federal grants, then you have no choice.

Educate. Remind your employees periodically of your policy and share studies on the harmful affects of marijuana use. If you want to prevent marijuana use and keep your good employees, you will need to implement your own "public education" campaign in your workplace. Provide your employees with information so they can make informed decisions.

As to that last point, we as a nation have banned advertising for alcohol (except for beer) and cigarettes. We also have public service campaigns warning people of the affects of alcohol and cigarettes. When will Oregon adopt similar advertising bans and fund public service campaigns on the dangers of marijuana? It's not likely to happen until the science on the risks and side affects catches up with the politics. Until then, the private sector needs to step up, including employers, including you. 

Recreational marijuana is just one of the many new Oregon laws that will make it more difficult, more expensive and add additional layers of risk for employers and job creators. If you don't take steps to take charge of your workplace, what changes will your employees' marijuana use bring to your workplace?

You may also be interested in the articles listed below.

Drug Policy Works – Case History

Employee Fails Drug Test – Part 1

Employee Fails Drug Test – Part 2

Employee Fails Drug Test – Part 3

LegalBriefs are published as an educational service for business people by Oregon business attorney Alan Thayer. He welcomes your questions and comments.

This article and all LegalBriefs articles are offered for general information and educational purposes only. They are not offered as legal advice and do not constitute legal advice or opinion. We do not promise or guarantee that the information is correct, complete or up-to-date. You should not act or rely upon the information in this or any other LegalBriefs article without seeking the advice of an attorney.