Marijuana Laws in the Workplace: Measure 91 & Drug Testing Policies

1. 1 Team Geyer “Hey, wait a minute, there's no birthday party for me here!”

2. Introduction to Measure 91 The Honorable Douglas L. Tookey

3. What does Measure 91 do? Honorable Edwin J. Peterson. An overview of measure 91 What this bill does. What this bill does not do.

4. When Phish goes bad Law Offices Of Green & Hand

5. marijuana in the Workplace Andrew Schpak BarranLiebman LLP

6. Outline of Topics Current Laws Relating to Marijuana and the Workplace Key Aspects of Drug Testing Policies Impact of New Laws on Old Policies

7. Current Laws Relating to Marijuana and the Workplace

8. Federal Controlled Substance Act • Marijuana is a Schedule I Drug • High potential for abuse • No currently accepted medical use in treatment in the United States • A lack of accepted safe use of the drug under medical supervision • Possession and use of marijuana is illegal under federal law • Federal government will not interfere with state laws on use of marijuana

9. Other Federal Laws • Drug Free Workplace Act • Applies to employers who receive federal funds • Requires a “zero tolerance” drug policy • No requirement to drug test • Occupational Safety and Health Act • General duty clause • Omnibus Transportation Testing Act • Applies to trucking industry and generally to those industries involving commercial driver licenses • Requires drug testing and alcohol testing

10. State Laws on Marijuana • Oregon laws: • Medical Marijuana Act • Oregon Health Authority charged with administration and oversight • Health care professional “recommends” use • Patient must register • Decriminalizes possession of small quantities of marijuana • Use must be limited to private place • Washington laws: • Medical Marijuana, RCW 69.51A • Similar to Oregon law • I-502, Recreational Marijuana • Authorizes the sale of marijuana by retailers licensed through the State Liquor Control Board

11. Oregon’s Measure 91 Allows possession, manufacture, sale of marijuana by/to adults, subject to state licensing, regulation and taxation Charges the Oregon Liquor Control Commission with regulation Allocates tax revenues to education, mental health and addiction services, and law enforcement

12. Measure 91’s reference to employment SECTION 4. Limitations. Sections 3 to 70 of this Act may not be construed: (1) To amend or affect in any way any state or federal law pertaining to employment matters

13. No Duty to Accommodate Medical Marijuana • No duty to accommodate or to engage in the interactive process • Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159 (2010) • Roe v. TeleTech Customer Care Mgmt.LLC, 152 Wash. App. 388 (2009) • Employer has obligation to accommodate the underlying condition if it is a disability

14. Signs of Changing Judicial Attitudes • Vialpando v. Ben's Auto. Servs., --- P.3d ---, (N.M. Ct. App., May 2014) • New Mexico Workers' Compensation Act authorizes reimbursement for medical marijuana • Coats v. Dish Network, L.L.C.,303 P.3d 147, appeal to Colorado supreme court pending • At issue is application of statute that prohibits employers from disciplining employees for lawful off-duty conduct of medical marijuana usage

15. Key Aspects of Drug Testing Policies

16. Components of a Substance Abuse Policy Employer’s policy statement Prohibited conduct and consequences for violations Basis for drug testing Drug testing procedures

17. Employer’s Policy Statement • Commitment to a drug-free workplace • Improved safety • Increased productivity • Decreased absenteeism • Confidential treatment of results • Required for compliance with the Drug Free Workplace Act

18. Prohibited Conduct & Consequences • Identify the prohibited conduct: • “Under the influence” while on the job • Possession of any “controlled substance” • Subverting the test • Refusing to test • Consequences: • Decline offer of employment • Discipline/termination • Treatment • Last chance agreement • Definitions: • “Under the influence” means having any detectable level of alcohol or illegal drugs in an employee’s body, or any noticeable or perceptible impairment of the employee’s mental or physical faculties • “Controlled substance” means all controlled substances on the federal Controlled Substances Act, to include marijuana and designer drugs not approved for use by the U.S. Food and Drug Administration

19. Basis for Drug Testing • Pre-employment • Do not test prior to offer • Testing should be post-offer, pre-placement • Use a “conditional offer” • Keep medical records confidential • Need-to-know basis • Separate from personnel file • Random Testing • Establish a protocol for randomly selecting employees • Notify employees of selection protocol • Don’t let supervisors abuse the policy • Selective enforcement will be evidence of pretext and retaliation

20. Basis for Drug Testing • Reasonable Suspicion • Watch for signs of impairment • Check with others about their observations • Document observations immediately • After accident testing • Do it immediately; do not let the employee continue working

21. Employer Drug Testing Laws • Oregon law: • Requires testing to be conducted by certified laboratory • Public employers: Pre-employment testing for safety- sensitive positions only • Washington law: • Public employers: No random testing, but reasonable suspicion and post-accident testing permitted

22. Impact of New Laws on Old Policies

23. Challenges Facing Employers • Safety Violations • OSHA general duty clause • Tort claims – negligent supervision • Whistleblowing / retaliation claims • Productivity Standards and Quality Issues • Recruitment • Public Image • Potential legal challenges to punishing off-duty conduct

24. Responding to the Challenges • Options for employers: • Implement/maintain zero tolerance policy • Maintain current policies • Develop different sets of policies relative to job duties and safety concerns • Modify policies to only prohibit being under the influence while at work or representing the employer • Document signs of impairment • Observations made by regular supervisor

25. Thank You! Andrew Schpak Barran Liebman LLP aschpak@barran.com

26. Does “the Man” have you down? Law Offices Of Green & Hand

27. Banking and Ethical Issues for Lawyers Deputy Attorney General Fred Boss Byron Farley

28. Measure 91 & Banking Federal Department of Treasury and the “Cole Memo” Suspicious Activity Reports Problems with Unwilling Financial Institutions Solutions & Alternatives

29. Measure 91 & Legal Ethics Oregon Rule of Professional Conduct 1.2 (A lawyer shall not. . . Assist a client in conduct that the lawyer knows is illegal.) Proposed Amendment

30. Does “the Man” have you down? Law Offices Of Green & Hand

31. Brutas

32. “Green” Gummy Bears

33. Deena Ryerson Assistant Attorney General Education: U. of Portland, B.A. 1995 U. of O Law, J.D. 1998 6 years with Washington County D.A.’s office 2006 became Oregon’s DUII resource Prosecutor across Oregon.

34. In Closing The Honorable Douglas L. Tookey Thank you from Team Geyer