Why Most OR Employers Will Keep Zero Tolerance Marijuana Policies

Thursday, July 02, 2015

Rebecca Randall, GoLocalPDX Contributor

Zero tolerance drug policies in the workplace can still snare an employee having a brownie over the weekend despite Oregon’s lifted prohibition on recreational marijuana, which went into effect on July 1. That’s because federal laws still complicate things legally.

Furthermore, drug tests currently available for marijuana can detect the metabolite from THC from the brownie you ate at a weekend party when you’re pulled for an at-random drug test at work. While not all employers want to squabble about your weekend, they also can’t tell the difference between on- or off-work use.

Because of these uncertainties, “most employers are not changing their policies and are sticking with zero tolerance,” said Ryan Orr, an HR and compliance consultant for the Cascade Employers Association who has been working with employers on this issue. “Employers still don’t have any obligation to allow exceptions to drug testing policy for marijuana because it’s still illegal federally.”

There are some, though, whose persuasion follows Oregon’s majority that voted yes on Measure 91 to legalize marijuana.

“I’ve definitely talked to employers who say, ‘I don’t really care what employees are doing if it’s legal,’” he said, though it depends partly on the industry.

Employers at white-collar jobs don’t tend to care as much as manufacturing employers, who have to worry about safety issues. Many in the manufacturing industry aren’t changing their zero tolerance policies, though a small number are now willing to drop pre-employment testing, reasoning “they’re not working for us yet, there’s no safety issue if they’re not working for us yet,” said Orr.

But there are some employers who now have more flexibility. One example is a resort employer in a small town, who called Orr recently saying he wanted to relax his policy. He knew that some of his employees were likely using marijuana, and he has a hard enough time filling positions. So with Oregon’s decriminalization of marijuana, he decided he had the legal backing to no longer require a pre-employment drug test or random testing. Now, a manager can only test if there is reasonable suspicion that someone is impaired from drug use while at work.

Ultimately, though, federal law still has a lot of sway. “Because federal law hasn’t changed, the Drug Free Workplace Act is still in effect,” said Orr. “Anyone who is a federal contractor or subcontractor is not going to have that flexibility.”

There are also some employers who contract with other companies—usually national or international—who refuse to work with companies that do not have a zero tolerance policy in place.

So if avoiding federal law on marijuana is impossible, does Oregon even have employment laws that could protect marijuana users?

No. Oregon is an “at-will” state, meaning an employer could fire an employee for just about anything as long as they’re not discriminating based on race, sex or sexual orientation or retaliating against a whistleblower. “If you want to, you could fire someone for chewing bubble gum outside of work,” said Orr.

Measure 91, which legalized marijuana, didn’t even attempt to touch workplace laws. In fact, the measure explicitly states that it does not “amend or affect in any way any state or federal law pertaining to employment matters.”

In contrast, Colorado, a state that has also legalized medical and recreational marijuana, had a workplace law with some teeth. It had an off-duty conduct law, which prohibits an employer from firing an employee for doing something that is legal.

But even that couldn’t stand up to the federal laws prohibiting marijuana use. Just last week, the Colorado Supreme Court ruled on a case of medical marijuana use outside of work, saying that since marijuana is still illegal federally that Dish Network had the right to terminate Brandon Coats, a quadriplegic who used marijuana to control leg spasms.

It underscores the power the federal law still has despite state’s desire to legalize not only recreational use but medical marijuana use.

In fact, it’s already a settled issue that even holders of a medical marijuana card in the state of Oregon can be at risk for termination at work if an employer wishes.

Medical marijuana use is not included in the Americans with Disabilities Act, so states have largely felt unable to grant it special protections.

In 2005, the Oregon Bureau of Labor and Industries (BOLI) ruled that Emerald Steel Fabricators had unlawfully discriminated against Anthony Scevers, a temporary employee who used medical marijuana. Scevers was offered full-time work subject to passing a drug test, but he told employers that he used medical marijuana. Scevers, an Army vet, was honorably discharged due to “anxiety and stress.” Once Emerald Steel knew about his marijuana use, it denied him employment.

The case made its way to the Oregon Supreme Court, which overturned BOLI’s ruling in 2010. “As a result, employees do not have protection for termination based on marijuana usage including medical marijuana patients,” said Charlie Burr, communication director for BOLI.

Until that ruling, BOLI had investigated a number of medical marijuana cases of discrimination based on disability, but since then, BOLI stopped taking those complaints.

Further complicating the issue is the lack of accurate testing for marijuana impairment. Unlike alcohol breathalyzers, which test blood alcohol levels for current impairment levels, there is no way of knowing for certain whether someone is actually impaired by marijuana when they take a standard urine sample test given by employers.

A standard five-panel urinalysis test detects marijuana, amphetamines/methamphetamines, opiates, PCP and cocaine. But the test is known to show presence of THC up to two weeks after the drug is used, depending on a numerous variables.

Employers are struggling with that, said Orr. Because the test can’t determine whether someone was using on the clock or in their own time, employers can’t be sure employees are telling the truth.

In Oregon, no acceptable threshold for impairment has been set for a DUII yet, though the Oregon Liquor Control Commission is tasked with that responsibility. Both Washington and Colorado have determined intoxication to be 5ng THC/mL of blood. But of course, you can’t really ask for a blood draw in an employment context, said Orr.

Herbert Hill, a chemist at Washington State University, is trying to solve part of the problem by developing an accurate breathalyzer test for THC. Hill has been doing human testing of the technology over the last six months by testing volunteers’ breath both before smoking marijuana and midway through a joint. He says he’s still a long way from a reliable technology.

The technology might make sense not only for cops but for employers, but ultimately the issue will remain hazy unless federal laws are changed.

The Oregon Bureau of Labor and Industries is fielding questions from employers on this issue on the line, 971-673-0824.

Related Slideshow: Recreational Pot Officially Legal in OR: What State Advocates Have to Say

State and non-profit leaders of the drug reform movement gathered at the American Civil Liberties Union (ACLU) to speak about what legal weed means for Oregon, and why it matters.

Prev Next

U.S. Congressman Earl Blumenauer (D-Ore.)

Congressman Blumenauer has championed several legislative efforts to reform marijuana laws.

"I am extraordinarily pleased with what has happened at the state level making progress to be able to refine the initiative that was passed with 56 percent of the vote.

It's part of this momentum- being able to take what the voters have enacted and refine it and move it forward so that Oregon can be a text book example of how to do it right."

Prev Next

U.S. Congressman Earl Blumenauer (D-Ore.)

"We're in the midst of a dramatic change all across the country. New states will be voting on it. The Federal Government over the next five years will be modernizing it based on what we've seen."

Prev Next

Measure 91 chief petitioner Anthony Johnson

Anthony Johnson co-wrote the new marijuana law, led the campaign to pass it, and explained why a legal approach to marijuana is better for Oregon.

"It's a really great day for cannabis law reform across the country because Oregon has helped lead the way for decades now and we will continue to lead the way.

Also today, the legislature further improved and reduced marijuana penalties and passed a bill that will allow for past marijuana offenses to be set aside in line with the new laws and for it to be expunged from their criminal record."

Prev Next

Measure 91 chief petitioner Anthony Johnson

"Starting at midnight we will have thousands of less people being cited for marijuana. We will better prioritize our law enforcement resources and soon we will start creating new jobs and generating new revenue for our state that will pay for things that our state desperately needs: public safety, drug education, substance abuse treatment programs and drug prevention programs to better keep minors from getting marijuana."

Prev Next

Moms for Yes on Measure 91 and Women Grow co-chair Leah Maurer

Leah Maurer, a mother of three, co-chairs the Oregon chapter of Women Grow Portland and organizes mom-related events. She spoke about how marijuana legalization benefits children.

"Under the current system marijuana is very easy for children and teens to get ahold of. It's being sold everywhere. Under the measure 91 system it will be regulated and only sold to adults.

Under the current system we have adults all over the state being arrested for small amounts of marijuana. Under measure 91, all those law enforcement resources will be freed up to focus on violent crimes and issues I feel far more strongly about- as a parent."

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Moms for Yes on Measure 91 and Women Grow co-chair Leah Maurer

"Parents have a responsibility to educate their children. Just as we educate our children about weapons, cars and alcohol, we have a responsibility to educate our children about marijuana."

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Racial justice advocate and ACLU of Oregon executive director David Rogers

A recent ACLU study found that people of color in Oregon are more than twice as likely to be arrested for marijuana related crimes, despite no disparity in use. Rogers spoke about how that changes now that recreational pot is legal.

"People of color are twice as likely in Oregon to be cited or arrested for marijuana than our whites, and some areas of Oregon are worse than others. Black residents in Multnomah County are over three times more likely to be cited and arrested for marijuana, and in Lane County that's three and a half times more likely.

Sadly we also know that arrest can also carry challenging collateral consequences that create long-term barriers to things like access to housing and employment."

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Racial justice advocate and ACLU of Oregon executive director David Rogers

"With the passage and implementation of Measure 91, Oregon can celebrate a racial justice victory and take satisfaction in removing some of the justice system's troubling collateral consequences that can ruin people's lives."