In this week’s mid-term election on November 4, Oregon, Alaska, and the District of Columbia became the latest jurisdictions to pass referendums decriminalizing the recreational possession and use of small amounts of marijuana. They join Colorado and Washington, which took this step in 2012. Oregon’s law becomes effective in July 2015; Alaska’s probably in February 2015.
Each of these laws is slightly different (read the full text here of the measures in Oregon, Alaska, and D.C.). But employers in all these jursidcitions may be wondering about the same question: does this affect my company’s anti-drug policy or drug testing program and if so, how?
The short answer is that none of these laws will change much for employers. The laws primarily simply decriminalize the personal and private possession and recreational use of small amounts of marijuana. They do not impose any new limits or obligations on employers, or create any new rights for employees when they are at work. In fact, both the Alaska and Oregon laws contain express carve-outs to that effect. See Alaska Ballot Measure 2, Sec. 17.38.120(a) (“nothing in the recently passed initiative “is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”); Oregon Measure 91, Sec. 4(1) (law “may not be construed…[t]o amend or affect in any way any state or federal law pertaining to employment matters”).
As a practical matter, this non-change means that employers that already prohibit employees from using, being under the influence of, possessing or distributing marijuana at work (as almost all employers do), or include marijuana as part of their post-offer drug testing, should be able to continue to do so. Similarly, employers won’t have to make exceptions to their workplace drug policies for employees who claim they need to use medicinal or recreational marijuana as an accommodation for a disability under laws like the Americans with Disabilities Act (“ADA”). Recently, courts—including, as we have already blogged about, in Oregon in 2010 and Washington in 2011—have held that state medical marijuana laws do not require that employers allow pot use at work or on company time as an accommodation for a disability. Those court rulings are unlikely to be affected by this year’s new state laws decriminalizing private marijuana use.
Moreover, the status of all these state laws continues to be at least somewhat unsettled. Remember that the possession or use of any amount of marijuana is still a crime under federal law. Federal authorities under the Obama Administration have (mostly) taken a hands-off approach and allowed the legalization experiments to continue at the state level. But that could change now that Republicans, who are generally far less keen on legalization, have taken control of the U.S. Congress. For example, because of Washington, D.C.’s unique status as a district, not a state, its measure requires approval of the newly-Republican U.S. Congress. Don’t hold your breath on that one. And of course things could change drastically if a Republican becomes President in 2016 and brings about a major shift in federal drug enforcement priorities.
Remind Your Employees Nothing Has Changed
So employers in Alaska and Oregon can rest easy. You do not need to rename your break room the “Cannabis Café.” But some employees may misunderstand the scope of these new laws, and might think they now have a green light to light up before or during their shift or bring their personal crop into work to share with their friends. To head off any such potential confusion, employers are encouraged to review their written policies and perhaps send out a company-wide reminder to confirm that the company’s policy prohibits marijuana even if it may now be “legal” under a prescription or local law.
Should you need assistance in reviewing your company’s policy or advice on this topic, please feel free to contact one of the attorneys within Stoel Rives’ Labor and Employment Group.
For an overview of the regulatory regime for legalization in Oregon, read Oregon Liquor Control Commission Given Job of Regulating Recreational Marijuana on our sister blog, Alcoholic Beverages Law.