Up in smoke? What Measure 91 means for your Employment Policy

Evenson, Andrew_167x222On July 1, 2015, Measure 91 goes into effect in Oregon, signifying recreational marijuana’s legality statewide. Of course, its “legality” comes with several limitations. Measure 91 allows Oregonians to grow limited amounts of marijuana on their property, to possess up to eight ounces of usable marijuana in their homes, and to possess up to one ounce on their person while in public. However, smoking marijuana publically remains prohibited, and the use or possession of recreational marijuana by anyone under the age of 21 remains illegal. That includes home consumption.

So, how does Measure 91 affect Oregon employers? It remains to be seen how the Act will affect current case law in Oregon, although a look at precedent surrounding medical marijuana and the workplace, in both Oregon and other states in which medical marijuana is legal, gives a speculative indication. In 2010, the Oregon Supreme Court held in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries Oregon employers need not accommodate medical marijuana use and may fire employees for its use, despite its legality under ORS 475.306. In reaching the determination, it held federal law preempted ORS 475.306. Similarly, in Roe v. Teletech Customer Care Management, a 2011 Washington Supreme Court decision, the court held that Washington’s Medical Use of Marijuana act was also preempted by federal law.

In Colorado, marijuana use is legal both recreationally and medicinally. On June 15, 2015, in Coats v. Dish Network, LLC, the Colorado Supreme Court affirmed an employer’s right to discharge its employee for medical marijuana use, despite no evidence of workplace usage or impairment, or violation of the limits of his license. The court upheld the employer’s discharge because, despite medical marijuana’s legality under Colorado statute, usage still did not constitute “lawful activity” under federal law.

While the Coats decision is non-authoritative in Oregon, it does serve as a timely reminder to Oregon employers that, despite recent developments, Federal regulation still preempts state law. Furthermore, Section 4 of Measure 91 states the Act may not be construed “to amend or affect in any way state or federal law pertaining to employment matter.” Thus, until new precedent states otherwise, Oregon employers may still lawfully maintain and enforce a zero-tolerance policy and may impose discipline, including termination, for violation of that policy.

While the enactment of Measure 91 establishes a new cloud of uncertainty in the workplace, take it as an opportunity to educate (or, hopefully, re-educate) your employees about your policy(s) regarding marijuana use. When do you want to drug test? At hire, for cause, randomly, or at injury? Be proactive and be transparent. Post posters. Host group meetings, or do so individually. Republish and redistribute your employment policy. Remember, it is your responsibility to educate your employees.

If you have additional questions regarding Measure 91, or other matters related to Oregon Workers’ Compensation, please contact me at Aevenson@sbhlegal.com