On November 4, 2014, Oregon voters approved a ballot measure to legalize recreational marijuana use. The new Oregon law, known as the Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act, allows people 21 years of age and older to possess up to eight ounces of marijuana in their home, and grow up to four marijuana plants per household. It also allows them to possess up to one ounce of marijuana in public. However, the use of marijuana in any public place or while driving on a public road is still prohibited. Under the law, people under 21 years of age may not possess marijuana. The law does not amend or otherwise affect the use of medicinal marijuana under the existing Oregon Medical Marijuana Act.
With respect to employment, the new law specifically provides that it “may not be construed to amend or affect in any way any state or federal law pertaining to employment matters.” In light of this language and the fact that marijuana use is still illegal under federal law, Oregon employers may continue to enforce otherwise valid zero-tolerance or drug-free workplace policies prohibiting the use of marijuana. However, employee challenges to such policies prohibiting lawful off-duty marijuana use under the new law are likely on the horizon.
Two states—Washington and Colorado— have already legalized recreational marijuana use, but neither state’s courts have yet decided whether employers must change their policies in order to accommodate lawful off-duty recreational marijuana use by employees. So far, however, the answer appears to be no.
Like most jurisdictions around the country, Oregon courts have resoundingly rejected an employer’s obligation to accommodate medical marijuana use under the Oregon Medical Marijuana Act, which expressly provides that “[n]othing in ORS 475.300 to 475.346 shall be construed to require . . . [a]n employer to accommodate the medical use of marijuana in any workplace.” However, the Ninth Circuit Court of Appeals and other courts have suggested that as legalized medical marijuana becomes more prevalent (and testing methods improve), the justification for employer prohibitions of lawful off-duty marijuana use will become more tenuous.
Along those lines, the Colorado Supreme Court is currently reconsidering whether Colorado employers may continue to enforce strict zero-tolerance drug policies and could issue an opinion deciding that issue any day. However, the Colorado challenge involves medical marijuana and arises in the context of a unique statute protecting employees from adverse employment action based upon “lawful off-duty activities”—Oregon and Washington have not enacted similar laws protecting employees. If the Colorado high court finds in favor of employees, it could signal a change in tides in how this issue is decided by other jurisdictions with respect to legalized medical or recreational marijuana use.
The new Oregon law technically goes into effect on December 4, 2014, but the provisions allowing people in Oregon to legally use and grow recreational marijuana are not effective until July 1, 2015. This delay was written into the bill to allow time for the Oregon Liquor Control Commission (OLCC)—the agency charged with regulating and taxing the production, processing, sale, and use of recreational marijuana—to implement regulations regarding this new law.
The law also includes comprehensive requirements regarding the licensing, taxation, and operations of businesses that will be engaged in the legal production, processing, distribution, or sale of marijuana in Oregon. Those requirements will be supplemented by agency rules and regulations that must be adopted no later than January 1, 2016.
Alaska and the District of Columbia also passed measures legalizing recreational marijuana use on the same day that the Oregon measure passed.
