Special Northwest Edition - Marijuana Updates
March 2015
With Oregon, Alaska and D.C. joining Washington and Colorado in legalizing recreational marijuana, we know that you have questions about what this means for employers. We are sending some advice, answers and things to think about from 3 different sources to give you varying information and perspectives:
An employment law attorney, an HR consultant and a drug testing industry expert.
We have also included some information on drug screening options and detection windows so that you will be informed about the best test to use for your particular drug screening program.
We hope this helps you in making decisions about your company policy surrounding marijuana use.
Occuscreen is partnering with employment law firm Davis Wright Tremaine to offer a complimentary breakfast seminar in our downtown Vancouver office:
"Legalized Marijuana - How Is an Employer to Respond?"

Join us May 13th from  7:30am - 9:00am to learn:
  • Exactly what the law means and doesn't mean for employers
  • Five steps to developing and administering policy on drug testing, given the legalization of pot
  • Options for drug testing based on your policy
  • Traps to watch out for in a positive test or possession by an employee
  • Options for employers to consider
For more information or to reserve your seat:

Email: pamelam@occuscreen.com 



 Marijuana in Oregon: 5 Steps for Employers to Take After Legalization of Marijuana

by Chys Martin, Davis Wright Tremaine


On Nov. 4, 2014, Oregon voted to decriminalize, regulate, and tax the production, delivery, and possession of marijuana. Oregon joins Alaska, Colorado, Washington, and Washington, D.C. in legalizing recreational marijuana use. For employers, the main thing to remember is that the recently passed initiative does not "amend or affect in any way any state or federal law pertaining to employment matters." Ballot Measure 91, ยง 4(1) (2014). Thus employers can still prohibit possession, use of or impairment by marijuana, just like most employers treat alcohol. Marijuana is still an illegal drug under federal law. The state law change will have no bearing on the U.S. Department of Transportation's regulated drug testing program. Employers can still test for marijuana use by employees and discipline or terminate for violation of drug and alcohol policies just as in the past. Furthermore, the new law does not go into effect until next July, and employers can remind their workers of that important detail.


Nevertheless, employers should revisit their personnel policies and drug testing programs, revise them if needed, and communicate with their employees about the impact of this initiative on their workplace. Here are Five Steps that employers should take to address this issue:


1.  Step One - Determine strategically whether you wish to treat marijuana like alcohol in the workplace. If so, then you'll need drug and alcohol prohibition policies and perhaps wish to implement a testing program. It is expected that marijuana use will increase in Oregon and thus many employers who weren't testing may decide it is in their best interests to test applicants or employees. Employers will need to determine how they will treat proven use, possession or impairment by marijuana.

2. Step Two - Develop policies prohibiting drug use if they don't exist or update existing policies. Carefully define what constitutes drug use under your policies as it must be clear that the prohibitions extend to illegal drugs under both state and federal law. Another option is to list which specific drugs or categories are included. Be sure to prohibit impairment by, not just being "under the influence of" drugs and alcohol and define those terms. Employers can prohibit the use or impairment by legal prescription drugs under certain circumstances if they pose an unreasonable risk of harm to the employee or others.

3. Step Three - If you have not implemented a drug testing program, you may wish to do so. This requires a clear policy and procedures and selection of a competent testing agency. Some agencies have sample policies and procedures available but will always encourage review by a lawyer before use. Whether it results from on-duty or off-duty use, a positive test for marijuana can support disciplinary action (including termination of employment) pursuant to well-written policies. Furthermore, as marijuana remains illegal under federal law, federal contractors and grantees need to continue to treat marijuana as an illegal drug under their Drug Free Workplace policies. Drug use is still not protected under federal leave laws or disability laws.

4. Step Four - Any change in policy or new policy should be provided to employees and a signature obtained confirming receipt either in hard copy or electronically. It is recommended that a cover memo accompany such new policies explaining the change and the rationale. This would be a good time to remind employees that the law does not go into effect until next July and therefore marijuana use is still a crime in Oregon and your existing policies still apply.

5. Step Five - Decide how you will treat breach of your policies or a confirmed positive test. Some employers have a zero tolerance for alcohol or drug possession, use or impairment and termination results immediately. Others treat alcohol and drugs differently, perhaps allowing time off for treatment of alcohol abuse but not for drug use. Some employers offer a last chance for violation of drug and alcohol policies depending on the circumstances. Others require participation in a treatment program before reinstatement to work. Whatever course you choose, be sure to treat similarly situated employees in a similar manner to avoid claims of discrimination.


Of course, unresolved issues remain. New legal arguments based upon discrimination, privacy, and public policy theories continue to develop as workers look for ways to challenge terminations and hiring decisions. To date, employees have generally been unsuccessful, but theories continue to evolve. Employers should educate employees that the law does not change anything with respect to prohibitions on impairment, possession or use at work.



For more information on this topic, please contact Chrys Martin at Davis Wright Tremaine;


503-778-5357                                                 chrysmartin@dwt.com


If you have any questions regarding drug testing options, please contact Pamela Mack at pamelam@occuscreen.com.


Medicine bottle with marijuana



Marijuana - "To Smoke or Not to Smoke," That Is the Question Oregon Employers Face Regarding Their Employees

By Sharon Jutila, Human Resources Consultant


On November 4th, 2014, Oregon voters passed Measure 91. As a result, Oregon followed Colorado and Washington to become the third state to legalize recreational usage of marijuana under state law. Alaska and Washington D.C. also passed similar laws during this election. All of the laws have been changed using the particular state's initiative process, which allows voters to place the measure directly on the ballot for decision. Under the new law, the bulk of which takes effect on July 1, 2015, individuals may possess up to four mature marijuana plants, eight ounces of marijuana flowers, and 72 ounces of marijuana products in liquid form without fear of prosecution under state drug laws. In simple terms, the new measure decriminalizes the personal use of marijuana by citizens of the state.
For Oregon employers, the passage of legalized recreational marijuana does not automatically mean revising their drug testing policy. In fact, continuing to prohibit marijuana use and testing for it during employment drug tests (pre-employment, random, reasonable suspicion and post-accident) is completely allowable in Oregon or any other state that has legalized marijuana.

Marijuana is still listed as a controlled substance under the Controlled Substances Act, so it remains illegal under federal law. Federal authorities have merely made the decision not to actively pursue prosecuting marijuana use in states that have legalized the drug. The passage of Measure 91 does not mean Oregon employers are obligated to discontinue testing employees for marijuana. Additionally, employers do not have to accommodate employee usage of marijuana, even if it is for medical reasons (such as for cancer or glaucoma) and it occurs off-duty. However, employers must accommodate any underlying disability, as has always been required under Oregon's Medical Marijuana Act even if they prohibit use of marijuana under their policies. 
That said, as a practical matter, it pays for employers to consider their key stakeholders. For those employers who do not maintain safety sensitive positions, such as those which require driving, operating forklifts, production lines, or power tools, it may be the case that the pools of potential qualified employees, as well as dedicated patrons, tip in favor of the new law. In such circumstances, employers may reasonably decide to adjust marijuana policies to prohibit only on-duty impairment rather than off-duty usage.

For instance, if there is no risk of injury due to safety reasons in the workplace, the company may decide that it no longer wishes to test for marijuana use. This is perfectly allowable, as it has always been. It is important to note that for any employers who are obligated to maintain a federal Drug-Free Workplace due to government contracts or other business obligations must continue to prohibit marijuana use to be in compliance with the Act.

If you wish to discuss whether or not it is a good idea for your workplace to continue to prohibit marijuana use, please feel free to contact your HR consultant to help you work through the issue as you may need to change your policies to reflect your decision. If you continue to prohibit marijuana use, you will need to make policy clear that, regardless of state law, any controlled substance is prohibited. Conversely, if you allow marijuana use you will want to make the expectation clear that it is not to be used during working hours or eight hours before a shift begins. 

For questions regarding marijuana in the workplace, please contact the Ameriben/IEC Resource Center at resourcecenter@iecgroup.com
   Marijuana Leaf  


Marijuana Legalized Coast to Coast... Sort of

by Bill Current


A majority of Floridians (57%) voted on November 4 in favor of legalizing marijuana for medicinal purposes but the initiative failed to reach the minimum 60% required to change the state's constitution to permit medical marijuana. Other that, November 4 was a stellar day for the pro marijuana movement with two states, Alaska and Oregon, plus the District of Columbia voting to legalize pot for recreational use ala Colorado and Washington. (Guam also voted to legalize marijuana for medicinal use.)

Congress can overturn D.C.'s new law, and perhaps our elected officials will, but marijuana is now legal in two more states.  What does this mean for employers? Do these new laws contain any language to protect workplaces from the ill effects of workers who are under the influence? Remember, while Colorado's recreational marijuana bill did contain a workplace provision, Washington's bill did not and still doesn't now that it's a law.

In Oregon, 54 percent of voters supported the marijuana bill, which is now scheduled to take effect in July 2015. In Alaska, 52 percent voted in favor of legalizing marijuana. A state commission will have nine months to develop regulations once the vote is finalized.

The good news is both the Alaska and Oregon initiatives include workplace provisions. As you will note in the following language, taken verbatim from the bills that were passed, lawmakers left many questions unanswered such as: Can employers test for marijuana? And what happens when someone tests positive? 

Alaska - Ballot Measure 2 - Recreational Marijuana

Amends Alaska Statutes Title 17 by adding a new chapter - Chapter 38 "The Regulation of Marijuana."

Sec. 17.38.120. Employers, driving, minors and control of property.

 "(a) Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."

Oregon - Measure 91 - Recreational Marijuana

Creates a new statute.  SECTION 4. Limitations. Sections 3 to 70 states that the Act may not be construed:

"(1) To amend or affect in any way any state or federal law pertaining to employment matters..."

Washington DC - Initiative 71 - Recreational marijuana

Amends Section 401 of the Uniform Controlled Substances Act of 1981. It includes this workplace-related language:

"(4) Nothing in this subsection shall be construed to require any district government agency or office, or any employer, to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of any such agency, office or employer to establish and enforce policies restricting the use of marijuana by employees."


Click here to learn more about the On-Line Ultimate Guide to State Drug Testing Laws where you can access comprehensive state-by-state information on drug testing, including marijuana.


Detection Windows Influence Which Screening Option You Choose
When you have made the decision about your company policy on marijuana usage, whether to use a no tolerence policy or to treat marijuana similar to alcohol, make sure you choose a screening process that will help you comply with your policy.
Urine Testing:  Positive test results from 2-5 hours after ingestion, to 1-3 days for occasional use, and up to 30 days for chronic users.
Oral Fluid Testing: (refers to lab-analyzed results, not instant products) Positive test result from within minutes of ingestion, to within 24 -72 hours.  Mimics a blood test. Substance must be currently in the system to test positive.
Hair Follicle Testing: Postive test results from 5-7 days after use, to up to 90 days.
Please contact us for questions about these processes, and other options by emailing info@occuscreen.com or calling 888-833-5304.

Please let us know if there are questions, areas of interest you would like us to address in future newsletters, or if you are interested in partnering with Occuscreen for employment screening.


Pamela Mack



In This Issue
5 Steps for Employers
To Smoke or Not to Smoke
Marijuana Legalized Coast to Coast
Detection Windows for Marijuana

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