Some Oregonians are no doubt breathing clouds of relief with the introduction of Senate Bill 301, the Oregon Legislature’s proposal to protect employees from being fired for personal marijuana use.  Employers, on the other hand, may find themselves in a sticky (icky) situation trying to comply with the proposed law, which, at first glance, seems straightforward but would present significant challenges if passed.

What The Bill Does and Does Not Do

SB 301 does not protect marijuana use specifically.  In fact, the bill doesn’t use the word marijuana or cannabis.  Instead, the text would prohibit employers from requiring, “as a condition of employment, that any employee or prospective employee refrain from using a substance that is lawful to use under the laws of this state.”  Lawful substances in Oregon include, of course, marijuana (medicinal and recreational).

Before ripping a bong in celebration, however, employees should note there are a few exceptions.  Employers could prohibit employees from using marijuana during their personal time if there is a “bona fide occupational qualification,” like safety.  Employers could also prohibit off duty use of marijuana pursuant to a collective bargaining agreement.

Most importantly, employers could still fire workers for impairment while on the job.  Proving impairment, though, is difficult because, as far as this blog knows, there is no method by which marijuana impairment can be conclusively determined—i.e., there is no “blood marijuana content” similar to a blood alcohol content.  That uncertainty notwithstanding, employers should still feel confident in terminating an employee based on objective observations (of hopefully more than one person) that an employee is impaired while at work (e.g., inability to communicate clearly or smelling like a substance combined with other indicia like bloodshot eyes).

Finally, the bill’s prohibition on requiring employees to refrain from using lawful substances “as a condition of employment” is unclear.  Does “as a condition of employment” protect employees from firing or refusal to hire only?  Or does it also protect workers from other acts, like a spike in their premium costs because of their marijuana use?  Again, the bill gives no guidance.

In sum, the proposed law simply considers marijuana to be like alcohol.  This seems simple on its face, but complying with the proposed law would pose serious challenges for employers.

Challenges in Complying With the Proposed Law

For instance, employers with significant business relationships with the federal government may be torn between complying with this proposed law and federal law, which still considers marijuana to be an illegal substance.  SB 301 provides no guidance for these employers who may still be trying to read the tea leaves of the new Trump Administration’s stance on marijuana enforcement.

Additionally, many employers offer health and wellness programs with certain incentives to improve health, like tobacco cessation.  Would this bill permit marijuana to be included as well?  Could employers refuse to hire pot smokers because of the impact on the health and wellness program?  EEOC interpretations have indicated that certain incentives—sometimes a fairly significant impact on health care premiums—are acceptable for wellness program participation.  Would increased premium costs be retaliatory?  SB 301 does not answer any of these questions.

The Bill May Still Change Before Becoming Law

While the Oregon Legislature perhaps simply intended to put marijuana on equal footing with other lawful substances when it comes to employment, it neglected to recognize the challenges employers will face in complying with the proposed law.  This blog has heard that there is considerable support for this bill, so concerned employers should contact their representatives to weigh in while there’s still time.