Will Oregon Finally Protect Off-Work Marijuana Use in 2019?

05 Jan Will Oregon Finally Protect Off-Work Marijuana Use in 2019?

It’s 2019 and Oregon employees can still be terminated for off-work marijuana use. That includes not just recreational use, but off-work medical use by registered cardholders in the Oregon Health Authority system– even patients with debilitating medical conditions like cancer or epilepsy. This means that Oregon, which has been on the forefront of decriminalization and legalization of marijuana, is no better than the most conservative jurisdictions when it comes to off-work use. What gives?

Back in 2017, the Oregon Senator Floyd Prozanski introduced Senate Bill 301. The bill would have protected employee off-work marijuana use—meaning employers could not terminate an employee for using marijuana outside of working hours, so long as it did not lead to on-the-job impairment. The bill faced opposition from industry groups related to worksite safety and federal law. Accordingly, the bill was amended to protect only off-work use by medical marijuana card holders, but this was still not enough to secure passage.

Never one to be stopped by a little failure, Senator Prozanski is back at it and has proposed a new bill, Legislative Concept 2152. The proposed bill is short and sweet. The relevant portion simply states:

It is an unlawful employment practice for any employer to require, as a condition of employment, that an employee or prospective employee refrain from using a substance that is lawful to use under the laws of this state during nonworking hours except when the restriction relates to a bona fide occupational qualification or the performance of work while impaired.”

However, it seems Senator Prozanski may not have learned any lessons from the 2017 session. The proposed bill does little to address industry concerns related to federal government contractors. Businesses that contract with or receive grants from the federal government are required to comply with the federal Drug-Free Workplace Act. As long as “marijuana” remains a federally controlled substance, these businesses must ensure their employees are drug-free to continue to contract with or receive grants from the federal government. If the Oregon employer does not comply with the federal Drug-Free Workplace Act, they cannot receive the contract or grant. However, if they terminate an employee for off-work marijuana use they would violate the proposed legislation.

Proponents of the proposed bill have stated the bill would not allow employees to use marijuana if a collective bargaining agreement prohibited it. However, a quick glance at the bill demonstrates that it does not clearly address that issue, and seems to continue to ignore the Drug-Free Workplace Act requirements altogether.

Many other states have managed to pass laws that protect employees’ off-work use of marijuana. A careful review of other state laws demonstrates that they specifically address the federal concerns. For example, Arizona’s statute protecting off-work medical marijuana use provides:

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or imposing any term or condition of employment…based upon…the person’s status as a card holder.”

Legislative concepts are a “draft of an idea for legislation.”  Perhaps there is still time for Senator Prozanski to draft a robust bill that addresses the concerns of businesses that rely on federal contracts and grants, and perhaps 2019 truly will become the year employee off-work use of marijuana is protected in Oregon. Stay tuned.