Marijuana In The Workplace


The recent legalization of recreational marijuana in Oregon has posed headaches for employers and some genuine confusion over employee rights. Should it be treated like alcohol? Can I fire someone who tests positive for marijuana? What about medical marijuana, is there a difference? If your company hasn’t updated its policies in years or is simply turning a blind eye to the issue, it might be time to rethink that approach. Clear and evenly enforced drug policies are essential to protecting your business, employees and even customers.


Marijuana Use Is Still Not Protected In The Workplace


Despite a cultural trend viewing marijuana as more acceptable, akin to the “new alcohol,” it isn’t in the eyes of Oregon employment law. Marijuana remains an illegal Schedule 1 substance under the Federal Controlled Substances Act—in the same category as heroin and cocaine. But what about Measure 91? If marijuana is legal, how can I fire someone for using it? Simply put, even though Oregon exempts marijuana use from criminal prosecution, its employment laws still allow termination for the “illegal use of drugs” as defined by the Federal Controlled Substances Act, which includes marijuana. Even Measure 91, while decriminalizing marijuana, states it does not affect laws “pertaining to employment matters.”


There is also no distinction for medical marijuana use. In fact, court decisions approving terminations for marijuana use have been in the context of medical marijuana. Although challenges are being mounted to protect employees from marijuana based terminations (including Senate Bill 301 introduced in 2017) there currently is no distinction between the two for employers. If an employer wants to maintain a “drug-free” workplace, it can currently deny or terminate employment for the “illegal use of drugs” based upon a positive test for marijuana.


Drug-Free Workplace Policies


For those employers that maintain a drug-free workplace policy, either by choice or mandate under Federal law, good policies start by explaining “illegal drug” use includes marijuana and is prohibited as a condition of employment. Company policies should also prohibit the possession of illegal drugs or drug paraphernalia on company premises and detail how drug testing will be administered. Finally, the company should reserve the right to determine, in its discretion, whether an employee is “impaired” and take adverse employment action if its drug policies are violated.


Policies “Allowing” Marijuana Use Are Risky


Unless required by Federal or State law to maintain a drug-free workplace, employers are generally free to craft drug policies of their choosing. Some delete any reference to marijuana in their employee handbook or even allow marijuana use on the employees’ “personal time” so long as they are not “impaired” at work. While this might sound attractive it can easily backfire. For example, what is “impairment” when it comes to marijuana? There is no definitive test available to employers, making termination decisions highly subjective which only increases the potential for legal challenges by disgruntled employees. Not prohibiting marijuana like other illegal drugs could also be interpreted as giving implicit consent to workplace use, so long as it is “discreet” and done off-site. This could expose your employees and others to job related accidents caused by an employee with marijuana in their system. Also, will your company insurance policy cover these accidents if marijuana use is “allowed?” It is not hard to imagine a legal and public relations nightmare resulting from relaxed drug policies. Although cultural views and criminal laws regarding marijuana are changing, employers should be wary of jumping in without thoroughly considering the issues unique to their business.