Today’s edition of the Nitty Gritty (a column focused on the details of our work as public employees) comes from Kathy Peck and Chandra Hatfield of Peck Rubanoff & Hatfield. Kathy and Chandra are two of ELGL’s favorite attorneys – smart, savvy and dedicated to public service.
Weed: How Does It Affect Workplace Rules & Policies?
With the passage of Measure 91 Oregon has joined a small, but growing number of states to legalize the recreational use of marijuana. Shortly after the election results were confirmed battle lines began to form regarding who has the right or, better stated, who should have the right to tax revenues generated from the sale of marijuana. The League of Oregon Cities is leading the way by asking the Oregon Legislature to amend the law to allow local governments to tax marijuana sales.
But what effect does the passage of Measure 91 have on an employer’s right to continue rules prohibiting employees from reporting to work with marijuana in their system or possessing marijuana in the workplace? The answer may surprise you. Marijuana remains an illegal drug under the federal Controlled Substances Act, and by its own terms, Measure 91 does not “amend or affect in any way any state or federal law pertaining to employment matters.”
Regardless of whether recreational marijuana use is legal in Oregon or other states, Employers are free to continue to treat marijuana as a prohibited substance under their drug and alcohol policies. Applicants who test positive for marijuana may be lawfully denied employment and employees can be legally prohibited from reporting to work or working with any amount of marijuana in their system. This includes applicants and employees who are medical marijuana users and are taking marijuana as treatment for their disabilities. Remember, however, that even though employers do not have to excuse or accommodate violations of their drug and alcohol policies, qualified individuals with disabilities are still entitled to other reasonable accommodations in the workplace if those accommodations would allow them to perform their essential job functions in compliance with employer policies.
Regardless of an employer’s desire to otherwise strictly enforce its drug and alcohol policies, DOT covered employers continue to be required to comply with DOT regulations restricting employees from reporting to work with prohibited levels of legally obtained medical or recreational marijuana in their system. State law will not excuse DOT violations.
Because the average employee may not fully understand all aspects of the legality –or should we say illegality– of marijuana, they may well think that it is permissible to report to work with marijuana in their systems. Especially if, in their view, it does not impair their performance. To prevent misunderstandings employers may want to consider taking the opportunity to update their employees on their position and expectations for their workplace before the law goes into effect.
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This update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Peck Rubanoff & Hatfield. For more information contact any of the Peck Rubanoff & Hatfield attorneys or consult your labor and employment law counsel.