Measure 91: What Oregon Businesses Need to Know


Some common misconceptions employers have about marijuana.

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According to a recent poll by SurveyUSA, Oregon voters are favoring Measure 91, 44% to 40%. Come November 4, Oregon may join Colorado and Washington in legalizing the recreational use of marijuana. It’s no secret that this legislation brings with it many unknowns and many Oregon business owners have questions about how the passing of Measure 91 may affect their business and, perhaps more importantly, change how they manage and evaluate employees.

If Measure 91 passes, we can expect confusion about the law and individual rights from both employers and employees. Education about these issues will be necessary in the next few months. For companies that don’t have drug policies currently in effect, the conversation will take a little longer.

As employment attorneys who work with businesses in the Pacific Northwest, we’ve had the opportunity to assist Washington employers deal with the legalization of recreational marijuana and we want to address some common misconceptions that Oregon employers may have.

If marijuana is legal, an employer can’t prohibit use of marijuana in their workforce.

Employers have the right to enforce their drug and alcohol policy, regardless of whether the substance being used is considered legal under state law. With more states passing laws allowing marijuana, there has been some confusion about an employer’s right to prohibit an employee from using marijuana. Alcohol provides a good example. Alcohol is a legal substance and people tend to understand that if you come to work under the influence of alcohol, your employer has the right to react. If legalized, there is no difference when the substance involved is marijuana. Even if it’s legal under state law, an employer has the right to take action against an employee who comes to work under the influence of marijuana.

If marijuana becomes legal under state law, it’s no longer an illegal drug.

If Oregon voters pass the initiative allowing individuals to possess and use marijuana, that means it is no longer considered illegal under state law when used within the parameters of the law. However, marijuana is still listed as a banned substance under federal law, which means it is still an illegal drug. Federal law enforcement agencies could still arrest and prosecute individuals for possessing marijuana.

An employer can refuse to hire an employee who has a medical marijuana card.

Employers need to be careful about disqualifying someone from employment, or firing a current employee, simply because they have a medical marijuana card. Medical marijuana is generally used to treat medical conditions, which could mean that the individual has a disability under state or federal law. If you automatically disqualify or refuse to hire someone because they have a medical marijuana card, you could be discriminating against that person because they have a disability. That doesn’t mean you need to allow an individual to violate your drug and alcohol policy by being under the influence while at work, but simply having a medical marijuana card doesn’t mean an individual is currently under the influence of marijuana. Medical marijuana card holders need to understand that the employer’s drug and alcohol policy will apply to them, even if they have a valid reason for using marijuana.  

An employer must accommodate an employee’s use of medical marijuana.

Although it is risky to refuse to employ someone because they possess a medical marijuana card, that doesn’t mean you need to accommodate their use of marijuana if it violates your drug policy. The Oregon Supreme Court has been very clear on this point: an employer does not have an obligation to accommodate an individual’s medical marijuana use, even if the individual has a disability and is using marijuana to treat their condition. If an employee violates your drug policy, then you should follow your usual disciplinary measures even if the individual is using marijuana to treat a disability. It is important your drug and alcohol policy is clearly defined, communicated, and available to employees. 

Using marijuana during non-work time won’t impact an employee’s work performance.

The lingering effect of marijuana on an individual’s cognitive abilities is debatable. There has been research done on both sides of the debate; some studies provide evidence that marijuana has an impact on cognitive ability for weeks after use, while other research seemingly dispels those conclusions. It’s difficult for employers to discern the truth about the cumulative impact of marijuana use and, in all likelihood, it probably depends on each individual. We represent many employers in safety-sensitive industries and most err on the side of caution by implementing a zero-tolerance drug policy. In non-safety-sensitive positions, employers have more flexibility but may still have legitimate reasons for being concerned about potential cognitive impairment, such as in positions where quality control and attention to detail is important. Employers should carefully consider what approach is right for their organization, taking into account job duties, company culture, and business needs.

Diane Buisman is an employment attorney and regional director with Vigilant. She is a University of Oregon graduate who is licensed to practice law in Oregon, Idaho and Washington.