91视频

Last November, Oregon voters passed Measure 91, which will allow adults to engage in the recreational possession and private use of marijuana. The law does not take effect until July 1; however, employers should not wait to determine what policies and procedures to put into place now. Effective policies can be determined by taking into account all the different pressures on employers caused by employee use of marijuana.

Before employers can identify the source of these pressures, it is important to understand the limits of Measure 91. The law does not allow for the possession or use of marijuana by individuals under the age of 21. Additionally, use of marijuana is not permitted in public, and possession in a public place is limited to the quantity of 1 ounce. Most importantly, Measure 91 did not change federal law related to marijuana. Under the Federal Controlled Substance Act, Cannabis (which is often synonymous with marijuana) remains illegal. There are implications here for employers subject to various federal laws.

Legal compliance with federal and other state laws offers one source of pressure on employers. For example, an employer designated as a federal contractor must still maintain a 鈥渮ero tolerance鈥� policy regarding the use of illegal drugs in order to comply with the Federal Drug Free Workplace Act. Additionally, employers that perform certain transportation functions must still comply with the drug regulations set by the federal Department of Transportation. Also, under both federal and Oregon law, an employer must provide a safe workplace under the Occupational Safety and Health Act. Oregon law specifically prohibits the use of intoxicating liquor and drugs on the job, and anyone whose ability to work safely is impaired by alcohol, drugs, or medication must not be allowed to work in that condition. When considering the impact of Oregon鈥檚 Measure 91, the first step for employers is to identify the legal obligations placed on their workplace by other laws.

Employers will also experience pressure on issues related to staffing. The increasing use of marijuana will make it more difficult for employers to maintain a strict zero tolerance drug policy, conduct drug tests, and attract and retain employees who are able to pass a drug test for marijuana. In certain industries and locations, recruiting may prove to be a major hardship for employers seeking to implement or maintain a hardline stance prohibiting the use of marijuana by employees.

In response to these pressures, employers should take some time to carefully consider their substance abuse policy. An effective substance abuse policy clearly outlines the employer鈥檚 position on the use of drugs, defines prohibited conduct, explains the consequences for violations, and describes the basis for drug testing. There are a number of reasons employers may want to be committed to a drug-free workplace, including improved workplace safety and increased productivity. An employer is free to regulate employee conduct related to illegal drug use, including prohibiting being under the influence, which may be defined as having any detectable level of alcohol or illegal drugs in an employee鈥檚 body, or any noticeable or perceptible impairment of the employee鈥檚 mental or physical faculties. Employers should clearly explain that any violation of the policy may result in immediate termination or the employee may be offered a second chance before termination. Finally, employers should give consideration under what circumstances, if any, employees will be subjected to drug testing. There are a number of bases for drug testing such as pre-employment, random, reasonable suspicion, post-accident, or return to duty. Unless specifically required by law, an employer is free to determine the basis for which employees must submit to drug testing.

There is no one-size-fits-all answer to how employers should address the pressures of recreational marijuana use; however, they have a number of options. First, they are free to determine the degree of discipline that will be imposed for prohibited conduct. Second, they are free to set the basis for testing required of employees. For example, employers may maintain a policy of a drug-free workplace without demanding that employees submit to random drug testing. Third, employers may establish one set of policies covering employees performing safety-sensitive functions and a different set of policies covering employees who do not perform such functions.

In the end, employers need to make informed decisions with respect to the risks and pressures of increased employee use of marijuana. As for the law in this area, employers in doubt should seek counsel from an employment attorney who can help develop a policy that complies with applicable laws while meeting the unique operational needs of the employer.

Kyle Abraham is an attorney with Barran Liebman LLP, where he advises and represents employers on a wide range of labor and employment law issues. Contact him at 503-276-2132 or at [email protected].