Recreational Marijuana Use Legalized in Oregon, Alaska and DC
Author: David B. Weisenfeld, XpertHR Legal Editor
November 18, 2014
Voters in Oregon, Alaska and the District of Columbia affirmed ballot measures earlier this month to legalize recreational marijuana use in small amounts. They join Colorado and Washington, which passed legalization laws in 2012. However, none of these laws will prevent employers from maintaining a drug-free workplace policy.
Oregon employment attorney José KIein of Barran Liebman explains, "If somebody has chronic pain and tells an employer I'm treating that condition with off-duty marijuana use, the employer is not required to accommodate that." Nonetheless, Klein asserts that the employer should engage in an interactive process with the employee to comply with the Americans with Disabilities Act.
Marijuana use remains illegal for any reason under federal law. However, the Department of Justice has not challenged state laws that have legalized marijuana use for either medical or recreational purposes.
Klein says employers in his state and others that have legalized marijuana may want to revisit their drug testing policies if they test for nonsafety-sensitive positions, especially if marijuana usage is more common in their area.
"The way drug tests are done right now, there is not a strong correlation between usage and actual impairment," Klein explains. As a result, he suggests employers may want to move to different testing mechanisms, akin to field sobriety tests, that measure incapacitation rather than traces of drug use.
What the Laws Do
The Oregon law will enable adults aged 21 or above to possess up to eight ounces of marijuana at home, grow four marijuana plants and possess one ounce outside of the house. The measure becomes effective July 1, 2015.
The Alaska law will allow adults aged 21 or above to possess up to one ounce of marijuana and grow six marijuana plants at home. As is true with the Oregon measure, the Alaska law expressly states that it does not intend to require an employer to permit or accommodate marijuana use in the workplace. It is expected to take effect in February 2015.
The District of Columbia already had decriminalized marijuana usage. But its ballot measure takes things a step further in legalizing recreational marijuana. However, public use remains prohibited in the District. The law is subject to a 60-day congressional review period, so the possibility remains with Congress changing hands in January that it could block the law.
Medical marijuana use is already legal to treat serious health conditions in all three of these jurisdictions.
Florida Medical Marijuana Measure Is Defeated
Florida voters narrowly defeated a ballot measure that would have enabled it to become the first southern state to legalize medical marijuana and the 24th overall. Unlike the measures described above, the Florida ballot question needed to receive at least 60 percent of the vote in order to pass and amend the state's constitution.
The medical marijuana amendment received 58 percent of the vote. The Florida measure would have legalized marijuana only to treat debilitating conditions as determined by a licensed physician. Among the covered conditions would have been cancer, glaucoma, HIV-positive status and Parkinson's disease.