Subscribe via iTunes | Download the MP3 | Run Time: 18:14

Need answers to your employee’s questions around Oregon’s legalization of marijuana effective July 1, 2015? This informative podcast featuring Suzi Alligood will provide you with information on the law and its implications for employers and their employees.

During the episode, you will take away the following: understand what Measure 91 really means for employers, review guidelines for developing and enforcing drug & alcohol policies, including testing and learn tips for communicating workplace expectations and policies with employees.

This podcast episode is perfect for managers, human resource professionals and business owners.

Resources:

www.oregon.gov/olcc
www.oregon.gov/olcc/marijuana/Pages/Frequently-Asked-Questions.aspx
www.barran.com/display-alert.asp?AlertID=293

 
divider_5
Brandon: Welcome everybody! This is the HR for Small Business podcast, my name is Brandon Laws, and today I have a special guest, Suzi Alligood. We’re here to talk about an awesome subject, but before we do that I wanted to mention that we’ve started a new podcast at Xenium. It’s called It’s About People. We’re going to try to get episodes out on a weekly or bi-weekly basis with panel discussions on articles and fun topics in the realm of HR and leadership. So please look us up on iTunes to subscribe!
Suzi and I are going to talk about the legalization of marijuana in Oregon. Why don’t you give us the overview up to this point—what is this new law, Measure 91?
Suzi: Sure! We’ve been getting some calls and emails from our clients, a little concerned, wanting to know just how this might impact them. And so, first, as you mentioned, it’s good to understand what the measure is and what it consists of.
Measure 91 passed in Oregon last November and it goes into effect July first of this year, July 1, 2015. Measure 91 allows the personal use and possession of recreational marijuana, under Oregon law. It also gives the OLCC, which is the agency that’s going to be tasked with the regulations.
Brandon: They handle liquor, at this point.
Suzi: Right, they oversee alcohol and now they will have recreational marijuana to enforce under this particular law. So they have the authority to tax, license, and regulate recreational marijuana. Measure 91 does not amend or affect the Oregon Medical Marijuana Act, which is separate. That’s applicable to patients with qualifying medical conditions.
Once the law takes effect, July 1st, adults 21 and older may possess up to 8 ounces of marijuana and grow no more than 4 marijuana plants in their households, which is interesting—there are some specific amounts here. Each adult can possess up to an ounce in public, however, it is unlawful to use marijuana in a public place in Oregon.
Individuals 21 and older may also gift but not sell—which is interesting—up to an ounce of marijuana, sixteen ounces of marijuana products in solid form, or 72 ounces of marijuana products in liquid form to other adults. So they may share or trade.
The purchase limit will be one ounce. So there will be retail, business where you will be able to go in and buy up to one ounce, unless the liquor commission sets a different amount. So that’s what was written in the measure, but they could change that.
The measure actually lists four types of recreational marijuana licenses: producer, processor, wholesaler, and retail. They’re not accepting applications for these licenses until January of 2016. So this year they’re really going to be working through all the administration of this measure and putting it into place. So the whole idea or benefit behind this measure, the way it wasSuzi and Brandon sold, was that there is going to be revenue generated through taxes when this is implemented, and the measure stated that that could range from $17 million to $40 million annually. Though of course, we don’t know for sure. The distribution of the revenue after cost is designated for K-12 schools, mental health and chemical dependency services, the state police, enforcement of the measure, and Oregon Health Authority for alcohol and drug abuse prevention.
Brandon: So here we’re talking about Oregon, but this is national news. There are other states that have already legalized it. Is it a very similar policy that they have, or a similar law?
Suzi: Yes. We follow suit with Washington, Alaska, and Colorado and now the District of Columbia. Five states!
Brandon: Do you think that, given the current administration at the federal level and looking at other states, it’s hard to know, but do you think other states will begin adopting these laws?
Suzi: It is hard to know. It definitely seems like more of a liberal policy.
Brandon: You mentioned earlier in response to my first question that there is revenue associated with this. That’s hard to ignore, especially if you are collecting a lot of tax revenue from it. I don’t know if enough time has gone by to know if it’s been successful or not in states like Colorado. It’ll be interesting to see where it goes.
What we’re really here to talk about, though, is the implications from an employer standpoint. That is our audience; we have HR people and business owners listening to this podcast, so let’s break it down. I think what’s on everybody’s mind right now is whether employers, because of the law, are required to accommodate the employees’ use of recreational marijuana.
Suzi: In general, the good news is that the passing of Measure 91 will not change much for employers really at all. Employers are not obligated to allow employees to possess or use marijuana while they’re working under neither the recreational marijuana nor the prior medical marijuana law. There are no additional civil rights or employment protections associated with the measure. Oregon employers are not obligated to accommodate employee use of marijuana, even if it’s for medical reasons. A case, Emerald Steel Fabricators vs BOLI, has held this up. So if you have an employee that comes up positive for marijuana, whether it’s a pre-employment, random, or probable cause drug screen, and they produce a medical marijuana card, if the employer has a policy prohibiting use or being under the influence of marijuana, they can enforce their policy. They don’t have to hire or maintain employment. The caveat to that is if there’s some other disability or underlying issue that’s separate from that, then they’re still obligated to evaluate coverage under disability law and possibly engage in that interactive process.

If you have an employee that comes up positive for marijuana, whether it’s a pre-employment, random, or probable cause drug screen, and they produce a medical marijuana card, if the employer has a policy prohibiting use or being under the influence of marijuana, they can enforce their policy.
-Suzi Alligood

Brandon: Another question I wanted to ask you, which I think you may have just answered, was, at the very broad level, can someone lose their job from smoking marijuana recreationally. I think the answer, to your point, is that it depends if their policy is stated a certain way.
Suzi: Yes. You definitely want to be clear about your expectations. I tell employers that this is similar to an alcohol type situation. Alcohol is a lawful substance, but do you want employees to come to work intoxicated, or drunk? Especially for the safety-sensitive positions, this can pose some serious risk for the employer and the employees. So I would treat it similarly, so if you have a philosophy or certainly if you have safety-sensitive positions, it’s important that employees know that if they come to work under the influence of lawful or unlawful drugs—this includes alcohol, now use of marijuana which is lawful, and even prescription drugs that may impair their ability to safely and effectively perform their job—that needs to be spelled out in your policy and communicated up front so that employees know the expectations.
Brandon: Could you talk about the testing part of it? I’m not an expert in testing by any means, but my understanding is that alcohol leaves your system a lot faster, but I’ve heard that marijuana can stay in your system up to 30 days, though maybe it depends on the person. Let’s talk about that. If an employee hadn’t smoked for almost a month and there just happened to be a trace, I guess it depends on what the policy might be, but talk about that.
Suzi: Yes, here is the challenge. Marijuana can stay in your system and show up in your bloodstream if you’re tested, even though you may or may not be impaired, though that’s subject to interpretation. So generally, employers who have a really strong stance on drug and alcohol use in the workplace have a zero tolerance policy, which can mean that if there’s any trace of a substance in their system, it can mean termination for that employee. So this is why it’s even more important for employers to be communicating that if we have a zero tolerance policy and we have a random, post-accident, or probable cause testing and you as an employee are using lawful marijuana outside of work and your test comes back positive, you could be playing Russian roulette with your job. If it shows up in your system, employers have the ability to enforce their policy.
With that, I would say that it’s probably a good idea for employers to build in a last chance option into their policy, which many employers already have. This gives them the discretion to evaluate each circumstance individually. Say you have a long term, highly valued, productive employee who ends up in this circumstance, you may want to keep them but also hold them accountable to this last chance agreement where they’re obligated to consult with a treatment professional and be subject to random drug screens for a period of time in order to maintain their employment.
Brandon: So at this point, for employers who perhaps only have an alcohol policy, this is probably a good opportunity to look at what their policy says and maybe add the marijuana or drug clause to it. How would an employer go about doing that?
Suzi: Most employers who have drug and alcohol policies, if they’ve been reviewed by Xenium or an attorney, they already include all of the components such as a statement that it is a policy violation to possess, be under the influence, sell, or distribute lawful or unlawful substances such as alcohol, marijuana, or prescription drugs. I would say that if that is your philosophy and something that you want to enforce, you should be specific in that regard as well as the testing.
The other piece is how are you reminding people of this policy and how are managers communicating expectations to employees. Employees may have misconceptions about marijuana and how, even though it’s legal, it may impact them in their employment, and if there’s a zero tolerance policy what that can mean. If they’re lighting up or eating pot brownies at a party on the weekend, it can result in the loss of their job. I think that’s the really important piece: getting out your policy, doing a review, and making sure it says what you want it to say and what you’re willing to enforce. Maybe look at that last chance option, and then take this opportunity to remind employees and interact in a discussion about it so that they’re clear.
Brandon: It’s interesting that in having this discussion, reading the material, and hearing what’s out there, it really sounds like nothing’s changed. I mean, if you really look at it, if you were doing things right in terms of your policies and communicating with your employees, nothing’s really changed.
Suzi: Right, exactly. The only thing that has changed is that employees may not be totally clear on what will be enforced now that marijuana is legalized. They may be naïve.

The only thing that has changed is that employees may not be totally clear on what will be enforced now that marijuana is legalized.
-Suzi Alligood

Brandon: Well, and they may think that because this is legal now and it’s a law to recreationally use marijuana, now the employers have to be okay with that.
Suzi: That’s possible, and they may also not realize how long it can stay in your system. So I think it’s worth educating people on that and clarifying your expectations.
Brandon: For someone who’s unclear about the rules and how it should be treated at work, there’s no difference between using it at home versus using it at work. It’s the same answer, right?
Suzi: Right. And if you’re coming to work under the influence, it’s just like drinking. So if you’re coming to work under the influence and you’re, presumably, impaired, you’re putting yourself, and potentially others, at risk.
Brandon: So where do we go from here? What’s the message employers should be giving to their employees?
Suzi: I think it’s, again, dusting off those policies, making sure they are updated to your standards and that employees are reminded and have the opportunity to ask questions if they have them. I think we’ve realized with all the regulatory changes and all of these local laws passing that we need to stay abreast of what’s going on, and that we also need to be a little flexible, because this could change.
Brandon: It very well could change. It’s still illegal at a federal level, so it could change at any moment.
Suzi: Yes. As you said, marijuana remains illegal under federal law, and President Obama and his administration have not asserted any influence over the states that have legalized recreational marijuana. But it could be interesting to see if things change with Congress in the upcoming election.
Brandon: Interesting. So, the message is that we should sit and wait and see what happens. But as far as the law is today, it’s pretty set in stone, right?
Suzi: Yes. And there’s a great resource on the Oregon government website that has some great FAQs which could even be something that you share with your leadership team and your employees so that they are educated about it. That information is at www.oregon.gov/olcc. And as OLCC is writing the regulations and deciding on some specifics around how this will be enforced, I’m sure information will be released and published on that site.
Brandon: Fantastic. Anything else that employers should know at this point? I think we pretty much covered everything.
Suzi: Yeah, I think so. I think employers have varying philosophies and positions on drugs in the workplace, and certainly that has to do with the type of work that you do, the culture you want to create and your own personal values, so I think that whatever that is, it’s always a good idea to be clear and communicate that to people so they know what to expect when coming to work so they can just focus on doing a good job.
Brandon: Awesome. We’ll include some links and resources on the blog with this podcast. If you have any questions, please leave them in a comment for Suzi or me and we’ll try to get them answered as fast as we can. Thanks for joining us today!
 
Disclaimer:
These materials are only intended to provide general information on the HR practices and legal principles that they cover, and are not intended and should not be construed to provide legal advice. Xenium has attempted to provide helpful information, but these materials do not address all of the HR considerations that might arise, nor do they set forth all of the potential legal issues or applicable statutes, regulations, or case law that might be implicated. Xenium does not assume responsibility for or liability for any reliance on the contents of these materials. Participants in Xenium workshops or programs must consult with legal counsel for legal advice on specific fact and legal issues, and when otherwise appropriate.