Employment eAlert: Pot at Work - What Measure 91 Means for Employers

On November 4, Oregon voters passed Measure 91, which legalized recreational use of marijuana in Oregon. Measure 91 does not require employers to permit employees to use marijuana at work or require employers to retain employees who test positive for marijuana use. The language of Oregon's new law permitting recreational marijuana use specifically provides that it "may not be construed to amend or affect in any way any state or federal law pertaining to employment matters." Control, Regulation and Taxation of Marijuana and Industrial Hemp Act

Current federal law defines marijuana as an illegal controlled substance. Accordingly, unless or until the federal law changes, employers may, as a condition of employment, prohibit marijuana use by employees and take disciplinary action against applicants and employees who test positive for any detectable amount of marijuana. Further, employers in Oregon are not obligated to accommodate an employee's use of medical marijuana. Oregon's medical marijuana law specifically states that it shall not be construed to require "an employer to accommodate use of marijuana in any work place." ORS 475.340

As employees bring lawsuits to challenge employer drug policies, we expect changes in the law. For the time being, however, employers can continue to maintain drug-free work places and require job offers to be contingent on a negative drug test and employees to be drug-free while on the job.

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This article was written by Elizabeth Semler, former Sussman Shank LLP Employment Law Partner.

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