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Weed At Work: Blunt Thoughts On Oregon's Measure 91 And The Workplace

October 14, 2014

By Michael G. McClory

At the beginning the year I predicted that marijuana would be one of the most significant workplace stories for 2014. So far, this is proving to be true. While the personal use ballot initiative in Oregon is prompting The Bullard Edge to ponder pot, there are a few key marijuana stories that need to be considered first.

Rocky Mountain High:

On New Year’s Day the Colorado personal use law went into effect and marijuana sales were instantly brisk. During the first six months of the year, legal sales resulted in state revenue valued at approximately $36 million. The money spent on this marijuana comes from somewhere – likely from persons employed in workplaces in Colorado.

Prairie State Experiment:

Also on New Year’s Day the “Medical Cannabis Pilot Program” went into effect in Illinois. While on first blush this might seem like another “medical” marijuana program, there is a buried provision that is a bit revolutionary. On the one hand, the law permits an employer to adopt a zero tolerance policy, require testing, and penalize employees or applicants who violate that policy. However, in a somewhat contradictory fashion, the law also creates job protections.

“Sec. 40. Discrimination prohibited. 

(a)(1) No school, employer, or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. This does not prevent a landlord from prohibiting the smoking of cannabis on the premises.”

Salmon Not All That Is Smoked In Washington:

Marijuana is big business in Washington. Although it has had medical marijuana for years, Washington’s Initiative 502, which legalized personal use marijuana (and passed by a wide margin), went into effect this summer. According to the Washington State Economic and Revenue Forecast Council, the “cannabis revenue estimates” are expected to soar from $18.5M for 2013-15 to $285.4M for 2017-19 (see Slide 17).

Something In The Air In Oregon:

Measure 91 will be on the November 2014 ballot in Oregon. It would  legalize recreational marijuana in Oregon. If passed, it would legalize “personal possession of marijuana within specified limits, and provide[] for a commercial regulatory system of marijuana production, distribution and sale.” Moreover, the measure also would establish a state tax on marijuana sales, with approximately ten percent of the tax revenue going to cities.

Will Measure 91 be approved? Passage is far from guaranteed, although the most recent polling that I have seen suggests that voters may adopt the measure by a narrow margin. While The Bullard Edge is leaving the answer up to Oregon voters, a number of localities are hedging their bets in favor of passage. Here is an example. 

Two weeks ago I received an emailed notice from the City of Lake Oswego. The notice informed me that the City Council would be considering a proposed tax on the sale of marijuana. Specifically, the notice stated that at its meeting later that day the

“City Council will consider enacting Ordinance 2655 which would establish a tax on the sale of  marijuana and marijuana-infused products in the City of Lake Oswego. If enacted on September 30, the tax would be effective before the November 4, 2014, vote on Measure 91.

The Ordinance passed. What is significant here is that the email from the City explained precisely why the City Council felt the need to adopt a tax ordinance before voters go to the polls. The notice observed that Measure 91 includes express language barring counties and cities from taxing marijuana. Nevertheless, the City stated that it expects the state legislature “to expressly ‘grandfather’ pre-existing local marijuana taxes.” For that reason, Lake Oswego adopted a tax of five percent of gross sales for medical marijuana and ten percent of gross sales for recreational marijuana. Cities like West Linn, Ashland, Hillsboro, Tigard, and Milwaukie have adopted similar ordinances.

The bottom line is that local governments are planning on addressing their bottom lines with marijuana taxes. This makes the legalization of marijuana feel inevitable in Oregon.

Message To Employers:

Get ready now. The number of marijuana users seeking employment is going to rise. Here are three suggestions.

First, review your drug and alcohol policies to make certain they say what you want them to say. At present, employers in Oregon and Washington are not required to loosen their policies and may continue to bar marijuana and its effects from the workplace.

Second, be aware that there may be greater legislative or judicial pressure to adjust the law in a manner that provides some form of employment protection for the lawful recreational and/or medical use of marijuana. 

Third, review your job descriptions. Any adjustments to the law that provide employment protections to users of marijuana are likely to draw the line at safety. If positions are safety sensitive, employers ought to consider documenting that and updating their job descriptions as needed.

The Bullard Edge will continue to follow this issue.

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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