Are Drugs Legal in Oregon? What is the Impact on Employment Drug Testing?
Oregon has legalized both medical and recreational marijuana use. Despite the lack of legal guidance, many Oregon companies have been quietly making changes to drug testing policies.
As states across the United States continue passing laws regarding the legalization (whether medicinal, recreational, or both) of marijuana, employment drug testing laws have struggled to keep pace. Currently, only two states have not legalized medical marijuana use. Nineteen states plus Washington D.C. have legalized the recreational use of marijuana.
Oregon has legalized both medical and recreational marijuana use. Despite the lack of legal guidance, many Oregon companies have been quietly making changes to drug testing policies in the state. Unfortunately, there are currently no “across the board” rules Oregon employees can count on.
Even though marijuana use is legal in the state, many Oregon companies still use pre-employment drug testing that may exclude marijuana users. This places Oregon behind the curve, as many other states have significantly relaxed pre-employment drug screenings for legal marijuana use.
As an example, the state of Nevada strictly prohibits the denial of employment due to the presence of marijuana in a pre-employment drug test. Oregon’s restrictive policies on pre-employment drug screening results—along with critical worker shortages in certain industries, a tight job market, and relatively high marijuana use among younger workers—have significantly impacted the state’s productivity and growth.
Unfortunately, many Oregon companies continue to adhere to rigid drug-testing policies. Some point to the fact that since the federal government has yet to legalize marijuana use, companies working under federal contracts essentially have their hands tied. While the federal government does require all companies to have a drug and alcohol testing policy, this does not automatically translate into pre-employment testing or random testing of current employees.
Random Employee Drug Testing vs. “Reasonable Suspicion” Drug Testing
Many Oregon companies are moving from random drug testing to testing based on the “reasonable suspicion” that an employee is under the influence of a drug. However, reasonable suspicion testing requires lengthy and specific training for supervisors. Supervisors must have more than a “feeling” about an employee’s drug use; job performance, changes in personality, changes in appearance, and absenteeism are long-term factors that can justify calling for a reasonable suspicion drug test.
Slurring words, the odor of alcohol, or a stumbling gait could be immediate reasons for a reasonable suspicion drug test. Reasonable suspicion drug testing is much more likely to lead to employee claims of discrimination than random drug testing, therefore, some employers still prefer at least the appearance of “randomness” when implementing an employee drug test. When an employer singles out groups of employees based on race, age, or gender for drug testing, those employees can claim workplace discrimination.
Employers must be extremely careful in how the drug test is conducted to avoid claims of invasion of privacy— i.e., requiring an employee to provide a urine sample in front of others or to disrobe. Finally, an employer that makes a positive drug test public when it was a false positive, can be sued for defamation. Employees in Oregon may be asked to submit to a drug test if evidence exists the employee caused or contributed to a work-related accident that resulted in injury or death.
Keep this information in mind if you are an employee in, or seeking employment in, Oregon. Contact us to learn more!