Oregon’s Measure 91 legalized recreational marijuana possession and use for those 21 and older effective July 1, 2015. Although the Measure legalizes the use and possession of marijuana under Oregon law, the change has little to no effect on an employer’s ability to enforce a policy prohibiting marijuana use because marijuana remains illegal under federal law.
Employers who have drug testing policies, and who want to continue to prohibit marijuana use by their employees after July 1, should review those policies and ensure they explicitly list marijuana (including medical marijuana) in the definition of “illegal drugs.” Additionally, in light of the publicity surrounding the change in Oregon law, employers may want to issue a reminder to their employees reinforcing the policy. Many employees may incorrectly believe that because marijuana is “legal” under Oregon law, an employer may not terminate an employee for testing positive.
Employers should also note that they may continue to prohibit the use of medical marijuana because the Oregon Supreme Court has ruled that employers have no duty to “accommodate” medicinal marijuana use. In short, an employer’s right to a drug-free workplace trumps an employee’s right to use marijuana, medicinally or recreationally.
While the change in Oregon law raises some questions about how it impacts employer drug policies, the short answer is the change does not require Oregon employers to allow their employees to possess, use, or test positive for marijuana – medicinal or recreational.
