Recreational pot and the workplace: Q&A on Oregon's new marijuana law – OregonLive.com
July 1 is nearly upon us, the day Oregon’s voter-approved recreational marijuana law starts taking effect.
If you’re an employee, you may be wondering where your rights to smoke begin and end. Can you puff on the weekend and go to work Monday thinking you’re on solid ground?
If you’re an employer, you may be revisiting your right to test workers for the presence of marijuana. Have the legal requirements changed? Is there reason to be more or less lenient than before?
We asked two Portland attorneys with expertise in employment law to answer those and other questions about legal pot and the workplace.
Here are highlights from our conversations with Matthew C. Ellis, a solo practitioner who represents workers, and Karen O’Connor, a partner with Stoel Rives who represents employers. Responses have been edited for length and clarity.
Both lawyers will participate in a live chat with readers at 7 p.m. Wednesday. We invite you to join the conversation. Come back to OregonLive.com Wednesday morning for more details.
Q. With respect to the use of recreational marijuana and the workplace, what if anything changes on July 1 for employers and workers?
Ellis: Nothing changes on July 1 with regard to employee rights or even employer rights with regard to use of marijuana – other than there will be a lot of confusion and misunderstanding about what rights people do and do not have.
O’Connor: I don’t think very much changes. The fact that someone can now legally use marijuana recreationally doesn’t mean you can use it at work. It’s not going to change anything about people’s rights or privileges at work because, for most employees, they can’t be under the influence of any substance while performing their job duties.
Q. What’s the most common question you get from clients on this topic?
Ellis: “I’m disabled, I have a medical marijuana card and I’m consuming off-hours. Can the employer test me and fire me for off-hours use?” They absolutely can, even if you’re using it to treat a disabling condition.
Q. Is it fair to say employers have all the power in this situation?
O’Connor: Yes, the employer has all the power. They can say I don’t want employees to smoke marijuana. But the employer needs to look at whether they want to get into what their employees do off duty or not. Most employers don’t want to go there. They only care about that intersection of what you’re doing on your free time with what you’re doing at work. You can’t shotgun six beers and go in and be a welder.
I don’t think employers are going to change their approach now that it’s legal. The issue has not been about legality but about whether it influences your performance at work.
Ellis: Yes, they do. There’s not a whole lot of leverage an employee has. What employers should be wary about is that people bring lawsuits because they feel disrespected. While the employer may have a lot of rights to test or terminate for use of marijuana, the chances of getting involved in litigation increase quite a bit if you don’t have clear written policies about the use of marijuana.
Q. What would it take to change the status quo?
O’Connor: The stumbling block for both sides is the lack of scientific information or evidence (to determine intoxication). We have standards for literally every other controlled substance. With alcohol, we know what it means to be under the influence, based on blood-alcohol content. We don’t have that information with marijuana. Unless and until we have it from the scientific community, I think it’s in the employer’s interest — it’s in all our best interests – to err on side of safety.
It’s not just about the right of employees to do what they want on own time. We have to balance everyone’s interests.
Ellis: We already have a statute in Oregon that prohibits the use of breath tests and psychological evaluations unless certain circumstances are met. The easiest thing to do is modify that statute so that the employer could not test for marijuana unless they had reasonable suspicion that the employee was under the influence at work.
The other thing that should happen is that Oregon disability law should be modified so that use of marijuana doesn’t defer to federal law (which classifies marijuana as illegal), so an employee would have more protection with the use of medical marijuana and addiction to marijuana.
Q. Under what circumstances can an employer conduct drug tests?
O’Connor: Employers need to have an established practice and need to follow the policy. Employers can drug test everyone or just certain positions or just safety-sensitive positions. Some have zero tolerance policies. They don’t want anyone using anything, although anything lawfully prescribed is not considered to be in violation of a drug workplace policy.
Ellis: There aren’t any restrictions on drug testing for marijuana as long as it’s applied across the board. If you have a policy that applies to all employees – whether random or based on reasonable suspicion – that is likely fine.
If an employer has a policy of testing people who have car accidents at work, whether they’re at fault or not, it goes to the basic question: What rights do you have to use marijuana? Yes, they can terminate you for use of marijuana, even if it had nothing to do with the accident. We’re still an employment-at-will state, meaning you can be fired for any reason as long as it is not an unlawful reason or a protected activity you engaged in. And as of now, use of marijuana is not a protected status. You just can’t go jail for it or be fined for it.
Q. What are the rules on pre-employment drug testing?
Ellis: The rule is same as before. You can test someone for drug use after you’ve made an offer but can’t do a pre-offer drug test.
Q. On balance, do most employers have a strict or lenient drug policy? Is there a trend in either direction?
O’Connor: It really depends on the industry they’re in. Manufacturing is different from most office and workplace settings. In any safety-sensitive setting, employers tend to have strict policies intended to ensure and promote safety at work. The reality is that people who are under the influence at work in a manufacturing or industrial setting are disproportionately more likely to be hurt at work.
Other employers tend to have less restrictive policies. If you’re in accounting, you’re less likely to get hurt than someone in manufacturing – it goes with the territory. You’ll find a looser policy where safety is not as much of a concern.
Ellis: Anyone who’s working around drugs – law enforcement, for example, or nurses or medical assistants – will be subject to a strict policy. Any jobs involving safety or heavy machinery are likely to be subject to a strict policy. In everything else, it’s all across the board. These kids working at startups tend to have lenient or no policies. So it really depends on the industry and the individual employer.
Q. Safety concerns aside, why might some employers want to consider a less restrictive policy?
Ellis: That’s more a policy question than a legal question. What legalization has acknowledged on some level is that our fears about the harm of marijuana were overboard. The reality is the negative health effects of alcohol are far more significant than marijuana, so you would think an employer might want to loosen their drug policies as a practical matter. Employers aren’t in the practice of looking over their employees’ shoulders on the weekend. It’s hard to see what purpose is served – unless it’s a safety issue – to play the role of Big Brother with regard to use of marijuana.
O’Connor: In office settings, if they’re not looking at whether you’re drinking on weekends, they’re not going to look at whether you’re smoking pot on weekends. As a general proposition, there is much broader societal acceptance than there was 20 years ago. No question we’re moving in that direction.
Q. People often ask, isn’t there a double standard when it comes to use of alcohol? If you consume off-duty and are able to work unimpaired, why shouldn’t you be able to do the same with off-hours consumption of marijuana?
Ellis: I agree there’s a double standard. I’ve always been of the mind set that the impact of an employee using an excessive amount of alcohol over the weekend can have an adverse impact on performance during the week, which is not the same as with marijuana. You don’t have people severely hung over from use of marijuana. But there’s not a lot employees can do to protect themselves because they don’t have a right to use marijuana.
O’Connor: Alcoholism is a protected as a disability as a condition under the Americans with Disabilities Act. Marijuana use is not because the employer does not have to accommodate an illegal drug.
Although alcohol is a disability, the law is pretty clear that you don’t have to accommodate someone’s alcoholism in the workplace. What you have to accommodate is their need for treatment. If you say I need Thursday afternoons to attend AA meetings, the law says the employer must accommodate your need for treatment.
Q. Final thoughts?
O’Connor: It will be interesting to see how this plays out. Even when we passed medical marijuana laws, people thought it was going to change a lot. But it didn’t. The issue for employers is not your drug of choice. Their concern is that you can be impaired. It doesn’t matter if it’s Vicodin, medical marijuana or alcohol. The question is if it affecting your ability to be safe at work.
Ellis: The area that needs to be developed more, ideally by the Oregon Legislature, is what rights do employers have to test for use of marijuana, now that it’s legal, if somebody is abusing it off-duty. There are restrictions on how and when an employer can test for use of alcohol. Right now, there are no clear restrictions for marijuana. Since we’ve legalized marijuana so it would be similar to alcohol, it would make sense to have parity there.
— George Rede