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Oregon voters approve recreational marijuana; are OR / WA employers prepared?

Posted Wednesday, November 5, 2014 by Karen Davis.

SOURCE: Vigilant Counsel for Employers, A PPI Association Partner

AUTHOR: Karen Davis, Employment Law Attorney, Counseling Employers Only

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Alert: Oregon voters approve recreational marijuana; are employers prepared?

The November 4, 2014, ballot results of Measure 91 are clear: Oregon voters have joined their Washington neighbors in approving recreational marijuana for individuals who are 21 or older. Employers in these states, as well as neighboring states where employees may cross the border to buy pot, should consider what to do next. The Oregon measure takes effect on July 1, 2015. The Washington measure has been in effect since December 6, 2012. Here are some thoughts that employers should consider:

Communicate your position on the marijuana measure to employees. You still have the right to enforce your drug policy, so if employees could be disciplined or fired for testing positive for marijuana or bringing it to work, you should let them know right away so that there’s no confusion. At the end of this Alert is a sample letter for this purpose.

Employees in neighboring states may believe they can pop across the border to pick up marijuana to use back home. Transporting marijuana across state lines is illegal, but if you have worksites in western Idaho, northern California, or northern Nevada, you may want to present a similar letter to your employees in those locations.

We expect the rate of positive drug tests to increase in Oregon when Measure 91 takes effect. As we previously reported, an analysis from national testing firm Quest Diagnostics found that the rate of positive drug tests in Washington increased 23 percent between 2012 and 2013, after recreational marijuana was legalized. If you have safety-sensitive jobs, or jobs where mental concentration is critical, you may want to implement or expand random drug testing. Your Vigilant employment attorney can help with drafting or updating your policy.

If you have workers covered by federal drug testing regulations (such as commercial motor vehicle drivers regulated by the U.S. Department of Transportation), you must continue to enforce those regulations in the workplace.

If you have federal contracts or grants of $100,000 or more, you are likely covered by the federal Drug-Free Workplace Act. The U.S. Department of Labor has a webpage explaining the requirements of this law. Although the Act doesn’t require drug testing, employers must still make employees aware of the dangers of drug use, and use good faith efforts to maintain a drug-free workplace.

Neither the Oregon nor Washington measures permit the use of marijuana in public places, so employers in those states should be able to continue their existing enforcement of state laws on maintaining a smokefree workplace.

If you would like help evaluating your existing drug policy in light of the legalization of recreational marijuana in Washington and Oregon, please contact your Vigilant employment attorney. Below is a sample letter you can use to communicate with your employees, if you intend to continue to enforce your drug policy. You may also want to refer employees to news outlets for the details of the Oregon law; Oregon Public Broadcasting and The Oregonian both offer helpful Q&As.

Sample letter to employees

We would like to clarify our Drug and Alcohol Policy in light of the recent approval of recreational marijuana in Oregon, similar to that already in effect in Washington.

The primary focus of our Drug and Alcohol Policy is to keep our facility a safe and drug free workplace. Therefore, we do not plan to make any changes to our current policy. A positive test for drugs, including marijuana or alcohol, will still be subject to disciplinary action according to our policy. Possession of drugs at work will also result in disciplinary action. No marijuana-infused products of any kind will be permitted on company property.

Marijuana remains illegal under federal law. Also, even though marijuana is legal under state law, keep in mind that alcohol is also legal but we don’t permit employees to come to work with alcohol in their system. Our expectation remains that employees will report to work in a suitable mental and physical condition to perform their job in a safe and efficient manner, with no detectible level of drugs or alcohol in their system.

Please feel free to speak with HR should you have any questions regarding drugs or alcohol in the workplace.

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This alert is a publication of Vigilant®, 6825 S.W. Sandburg St., Tigard, OR 97223, telephone 503-620-1710. © 2014 Vigilant. This publication presents general information in nontechnical language. Before applying this information to specific management decisions, consult legal counsel.