The Daily Journal of Commerce recently posted “Industry employers see trouble with legalized marijuana.” Currently, according to the article, if an employee tests positive for marijuana after an accident, “The employee has a big problem.” However, after passage of Measure 80, which would legalize marijuana use similar to alcohol, “How would employers determine whether a worker is affected by marijuana?” asks Ron Guerra, a lawyer with the Lake Oswego law office, Jordan Ramis, PC.
The article highlights concerns by industry employers that they won’t be able to adequately address the issue of impairment in the workplace if employees are allowed to lawfully smoke marijuana in their free time outside of work. According to the DJC article, a construction industry leader is quoted: “The measure creates issues across many industries dealing with [the] whole problem of impairment and showing up to work impaired…It throws out a lot of policies and procedures that apply when people show up at work impaired.”
However, the article fails to explain why this is the case. Under current policies in most workplaces, no tests are done to determine “impairment.” Instead, in pre-employment drug screenings and post-accident testing, employees are tested to see if they have marijuana metabolites in their urine.
Marijuana metabolites are not created until after the body has begun to process the marijuana consumed, which means that urinalysis is only testing for previous use. “Previous use” could mean days or even weeks prior to the day in question, and does not demonstrate current use or impairment.
These tests are sufficient for the current needs of employers, however, because presence of metabolites indicates unlawful drug use which is cause for termination (or for rejecting an applicant, in the case of pre-employment screenings).
If Oregon passes Measure 80, employers would still be bound by the Drug Free Workplace Act and would have no conflict with federal law, according to Ron Guerra in a phone interview. However, he is concerned that Oregon law, which generally favors employees in conflicts with employers, could create problems for employers trying to comply with federal laws. Guerra says that legal marijuana “places employers between a rock and a hard spot.”
The problem is not legalizing marijuana, however – the problem is that the tests employers use today don’t address impairment at all. Guerra says that “Impairment is the nexus that an employer has to show to avoid discrimination.” With legal marijuana, he believes that demonstrating “previous use”, as urinalysis does, won’t be sufficient for employers attempting to address workplace safety.
There are a variety of tests developed in recent years that do address impairment, but due to the low cost of urinalysis, most employers currently use that method instead. If Oregon decides to legalize marijuana, employers will likely have to evolve and test for actual impairment instead of previous use. Not only would that be beneficial for employees concerned with privacy, but it would also improve workplace safety as well.
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