By Valerie Smith • The Bulletin
When Colorado and Washington voters legalized the recreational use of marijuana, it raised questions over employer drug testing and the ability of employers to regulate employees’ off-duty behavior.
Those questions could surface next in Oregon, where voters will decide in November whether to legalize pot.
Measures passed by voters in Colorado and Washington — Amendment 64 and Initiative 502, respectively — left employers’ rights essentially unchanged, at least for now, according to text of the measures and interpretations by officials in both states.
Oregon Measure 53, which Oregonians will vote on Nov. 4, also would legalize recreational use of marijuana and regulate its possession, cultivation and sale for those 21 years and older.
Language in Measure 53 states it would not affect “in any way” state or federal employment law.
Paloma Sparks, legislative director for the Oregon Bureau of Labor and Industries, believes the legalization of marijuana will not change an employer’s right to enforce policies on drug use, at least at this point, based on current medical marijuana laws.
“We are still looking at the issue and have not yet taken any position,” said Sparks. “But current law does not prohibit employers from having zero-tolerance policies with regards to medical marijuana use.”
Oregon and 19 other states have legalized the use of medicinal marijuana since 1996, according to the federal Office of Drug Control Policy.
The Oregon Supreme Court ruled in 2010 that the legalization of marijuana for medical use only provides immunity from criminal prosecution. It did not provide any employment protections.
The opinion also pointed out, as have officials in Colorado and Washington, that marijuana use remains illegal under federal law.
Individuals can still be prosecuted under federal law, according to the Washington State Liquor Control Board, which implemented that state’s regulations legalizing pot.
Institutions that receive federal funding also still must follow federal drug-testing requirements, the Liquor Control Board states on its Web pages.
Colorado and Washington employers are not required to tolerate employee marijuana use, or change drug-free work policies under state law.
No one in either state suggests recreational pot legalization prohibits employers from firing workers who are stoned on the job. In fact, many jobs, such as those that involve public safety or driving and transportation, have clearly stated anti-drug policies.
However, Colorado also has a law that says an employee cannot be fired for engaging in a lawful activity during nonworking hours.
Susan Weinstein, director of congressional and federal affairs for the National Alliance for Model State Drug Laws, believes the issue is in a gray area.
“So, private employers can do whatever they want basically,” said Weinstein. “Employers can restrict the use of, possession, cultivation, or use in the workplace, but they can’t fire someone for smoking if it’s legal. If you want to go home and you’re in Colorado or Washington and you want to smoke a joint because it’s legal there, no, you cannot fire them for that.”
But as Atlanta-based law firm Ogletree, Deakins, Nash, Smoak & Stewart, points out on its website, smoking marijuana is not a lawful activity under federal statutes. The Colorado law also has some exceptions that could allow an employer to prohibit an employee’s marijuana use, according to the firm, which specializes in employment law and has more than 700 attorneys in more than 40 offices.
Dianne Westmoreland, branch manager for Bend based employment agency Staffing Partners LLC, feels as far as drug screening and employment policies, everything is up in the air at this point.
“We are a crime-free, drug-free workplace,” said Westmoreland.” At this point, all applicants must pass a 10-panel drug test and felony background check. As far as if the measure passes, we haven’t discussed that matter; things may have to change, but it remains in place as of now.”
— Reporter: 541-383-0325