Pubdate: Sun, 12 Apr 2015
Source: Bulletin, The (Bend, OR)
Copyright: 2015 Western Communications Inc.
Author: Joseph Ditzler


Oregon Employers With Drug Policies May Continue to Enforce Them

The advent in July of legalizing marijuana for recreational use in 
Oregon will have no effect on workplace rules on drug use and drug 
testing, say lawyers specializing in Oregon employment law.

That hasn't stopped employers from wondering what changes, if any, 
they need to make to those policies.

"Right now, we're in a holding pattern," said Tamara Weber, human 
resources manager at Robberson Ford, in Bend. "We want to see how 
things play out in the Legislature."

Measure 91, the 2014 ballot initiative that legalized recreational 
marijuana, specifically left state law on employment and housing 
untouched. But several bills working their way through the 
legislative session in Salem could further define the measure before 
possession becomes legal July 1 and recreational sales begin next year.

"The main concerns (from employers) are with drug-testing policies 
and what to do if somebody tests positive for marijuana after July, 
when it becomes legal," said attorney Katherine Tank, of Bend, an 
employment law specialist. "Can I still discipline an employee who 
tests positive if they use it for recreational use?"

The short answer is yes, according to Tank and attorney Amanda 
Gamblin, of Schwabe, Williamson & Wyatt, in Portland. The measure 
itself does not affect state or federal employment laws, and that 
won't change, said Gamblin, also a specialist in employment law.

"It's amazing how many employers are having employees say to them, 
'But, it's legal,'" she said. "So is alcohol."

Prohibiting on-the-job marijuana use is a no-brainer, but questions 
arise with off-duty marijuana use and workplace drug testing. The 
most common method, urinalysis, can show whether the subject has 
ingested marijuana, sometimes up to a month or more after the fact. 
It doesn't necessarily indicate the subject is impaired or under the 
influence of marijuana. Gamblin said employers may expect challenges 
after July from employees who test positive on a workplace drug test 
but who ingested marijuana on their own time.

"The ACLU has long believed that drug tests only show if there is a 
presence of a substance in somebody's system," said Jann Carson, the 
interim executive director of the American Civil Liberties Union of 
Oregon. "It doesn't measure impairment."

The courts in Oregon hold that even Oregonians who claim medical 
marijuana provides relief from a disability can expect no protection 
from the state as long as the federal government lists marijuana as 
illegal. If the law doesn't protect medicinal marijuana users, 
recreational users haven't a prayer, lawyers said.

Many employers have workplace drug policies in place for liability 
reasons, others because their work is somehow governed by federal law 
or a federal contract.

Pilots, for example, and truck drivers are governed by federal 
regulations that mandate a zero tolerance for marijuana use. So are 
companies that receive federal grants. For those employers, Gamblin 
said, the message is simple.

"I think, number one, communicating to employees that if you're a 
federally regulated employer, nothing is going to change for you," she said.

Outside of that, the degree to which employers use drug testing 
varies from one to another and the kind of work they do. At 
Robberson, employees typically operate heavy machinery and shuttle 
customers back and forth in vehicles, Weber said. The company drug 
and alcohol policy extends to employees' off-duty conduct if they are 
wearing work apparel with a Robberson logo, she said. The company 
uses pre-employment drug screening and tests employees in the event 
of an accident on the job, she said.

Much the same goes at R&H Construction Co., and company Vice 
President for Central Oregon Gary North said he doesn't expect that 
policy to change. Neither does he anticipate a sudden blossoming in 
the number of workers impaired by marijuana.

"We pay pretty close attention, and the work we do requires full use 
of motor skills," North said, "and we can tell pretty quickly when 
somebody is not operating to their capacity. Nobody wants to get 
hurt, and most of the work we do is in pairs or threes, so we have a 
built-in mechanism. People that wouldn't be under the influence would 
be paying attention to anybody who might be."

Recreational marijuana smokers will have no defense if they come up 
positive on a workplace urinalysis, Gamblin said. Other lawyers 
agreed. Oregon allows employers to terminate workers, other than 
union or other protected workers, at will on nearly any reasonable 
grounds, said Michael Rose, a Portland attorney with experience in 
civil rights and employment law. That means employers can dismiss 
employees for using marijuana, even on their own time, Carson said.

"The current court opinion is that you don't have to accommodate the 
use of marijuana, including medical marijuana," Tank said. "Employers 
can continue to enforce their zero tolerance policies in regard to 
drugs and drug testing."

But the controlling case on medical marijuana and the workplace, 
decided by the state Supreme Court in 2010 in Emerald Steel 
Fabricators v. Bureau of Labor and Industries, may be ripe for a 
challenge, particularly if testing protocols improve and the federal 
government decriminalizes or legalizes medical marijuana.

Portland attorney Leland Berger, who's argued a similar case on 
behalf of the Oregon branch of the National Organization for the 
Reform of Marijuana Laws, said the Emerald Steel decision rests on 
federal law, not the state medical marijuana law. He said he believes 
it's a bad decision that needs to be re-addressed.

The Emerald decision holds that people who use medical marijuana to 
alleviate a disability are not protected under Oregon law because 
marijuana is considered illegal by the federal government. The 
argument pretty much stops there, lawyers on both sides of the question agree.

"So long as marijuana is criminalized under federal law, the argument 
about whether you can be fired for your off-the-job use doesn't go 
very far," Rose said.

Marijuana advocates may eventually use more discerning tests for 
impairment to challenge state law on workplace testing, Gamblin said. 
Currently, only a blood test, which is more expensive and regarded as 
a greater intrusion on the subject's privacy, can detect the 
psychoactive ingredient in marijuana, she said. Eventually, improved 
testing, like a cheap breath analyzer that measures impairment, may 
supplant urinalysis altogether.

Measure 91 instructs the Oregon Liquor Control Commission to research 
the effect of delta-9 tetrahydrocannabinol, the primary psychoactive 
ingredient in marijuana, on the ability of a person to drive. That 
research could later be applied to employment questions, Carson said.

"In these instances in the workplace, we know that marijuana 
metabolites will show up many, many weeks after they ingest 
(marijuana)," said Carson of the ACLU. "(Urinalysis) doesn't tell the 
employer whether that employee is impaired or not."

Gamblin said some employers may choose a more tolerant approach, 
particularly in situations where, as marijuana becomes socially 
acceptable, restrictive policies may put off the talent those 
companies want to hire. She counsels those companies to create more 
flexible policies that allow a wider variety of testing as it becomes 

Where workplace safety is less of a concern than at a construction 
site, employers are no less conscious of on-the-job impairment, said 
one local employer.

"Basically, we have to have people sober," said Preston Callicott, 
CEO of Five Talent, a software development company in Bend. Five 
Talent does not test its employees either in the hiring process or in 
the workplace, he said. Nonetheless, software development requires a 
clear head, Callicott said.

"We have a monastery here," he said. "They're 100 percent focused."

He said he's never had a case in which he's had to counsel someone 
for suspected drug use in the shop. The company has a drug policy - 
its insurance carrier requires it - but Callicott said his policy 
boils down to two levels of concern: one, for the business, because 
employee behavior can jeopardize the business; two, for the employee, 
in whose welfare Callicott said he takes a personal interest.

"Drug testing for us is asking the questions," he said. "It's an honor system."


Measure 91

Measure 91 allows the personal use and possession of recreational 
marijuana under Oregon law for those age 21 and older. It also gives 
the Oregon Liquor Control Commission authority to tax, license and 
regulate recreational marijuana.

Personal use

* Beginning July 1, recreational marijuana users can possess up to 8 
ounces of marijuana and four plants per residence in Oregon. An 
individual can carry up to 1 ounce in public and can begin growing at home.

* Marijuana cannot be smoked or consumed in public.

* Measure 91 does not impact employment law in Oregon.

Source: Oregon Liquor Control Commission;
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MAP posted-by: Jay Bergstrom