“I Used Pot Like Three Weeks Ago, Dude”

Bullard Law – A Proposed Oregon Law Would Protect Off-the-Job Marijuana Use

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Although Sir Isaac Newton, the Lad from Lincolnshire, called by some the Father of Physics, has been dead for nearly 300 years, his thinking can help us make sense of the modern marijuana debates. I am thinking in particular of Newton’s Third Law of Motion: “For every action, there is an equal and opposite reaction.” We are going to use Newton’s Third Law to help shed light on Oregon’s newest proposed marijuana in the workplace legislation.

Longtime readers of The Bullard Edge (which is everyone, right?) will recall that we first addressed the marijuana law evolution in our fifth post, titled “When Mary Jane Brought a Pot Brownie to Work” (April 15, 2014). Here is some of what we said in that post.​

Prediction 1: In states that have legalized medical or personal marijuana use, “the number of state residents using marijuana will likely increase,”

Prediction 2: “which in turn (a) will mean an increase in the number of marijuana users seeking employment,”

Prediction 3: “which (b) will likely lead to an increase in the number of applicants/employees testing positive for marijuana use.”

Prediction 4: Consequently, the “rising numbers of disciplinary actions resulting from violations of workplace drug policies may lead to greater legislative or judicial pressure to adjust the law in a manner that provides some form of protection for the lawful recreational and/or medical use of marijuana.”

That seems to be a somewhat Newtonian prediction chain. Each predicted action carries with it a direct reaction. We will assume for our purposes here that predictions 1, 2 or 3 have proven to be correct, at least in Oregon. In other words, we will assume that, as compared to a few years ago, a higher percentage of Oregonians are using marijuana, that a higher percentage of job seekers use marijuana, and that employers are seeing a greater percentage of positive pre-employment drug tests.

This brings us to Prediction 4. We said that the rising number of adverse employment consequences for job seekers and employees would spur the exploration of possible legislative intervention. Cue the music and enter onto the scene Oregon Senate Bill 301, introduced January 7, 2017. This is a bill intended to protect job seekers and employees from adverse employment action based on their off duty use of “any substance that is lawful” ~ read: marijuana.

The bill is straightforward. It would amend ORS 659A.315 as follows.

“It is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using lawful tobacco products a substance that is lawful to use under the laws of this state during nonworking hours” [text to be replaced is stricken and text to be added is underlined].

Anticipating that there would be a hue and cry about this, the bill includes exceptions for (1) bona fide occupational requirements and (2) the “performance of work while impaired.” In other words, if there is a law that requires certain workers to be marijuana free (e.g., DOT regulations for drivers), then an employer may take adverse action against an applicant or employee testing positive. Similarly, where off-duty marijuana use by an applicant or employee would result in on the job impairment (e.g., unable to perform the job duties or unsafe while performing them), then an employer may take adverse action against an applicant or employee testing positive.

While the first exception is easy to administer, the second exception is fundamentally flawed. As we have repeatedly noted (here and here, for example), marijuana is different than alcohol. Alcohol impairment testing exists and is accurate. However, effective marijuana impairment testing does not currently exist. The best that an employer can do, today, is test for the presence of marijuana in the system. An applicant or employee might protest that presence is not impairment (“I’m fine” or “I used it three weeks ago”), but there is not a way to scientifically test that certitude.

Fair or not, that is our technological reality. Because of this reality, the exception in Senate Bill 301 that would allow an employer to take adverse action where an employee is impaired is meaningless. As written it places the burden on the employer to prove impairment; however, there is not a scientifically-accepted test for that.

While The Bullard Edge doubts that this version of Senate Bill 301 will be enacted in Oregon, there is definitely a certain amount of momentum favoring workplace protections for pot use. Stay tuned.

In the meantime, an employer that has adopted a drug-free workplace policy should review it to make certain that the policy says what the employer wants it to say and to make certain that the policy is understandable to employees. Further, the employer should provide training on the policy to everyone, including supervisors. Finally, the employer should make sure that its drug-free workplace policy is being uniformly enforced.

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