Oregon Senator Floyd Prozanski’s bill to prohibit Oregon employers from restricting or penalizing off duty marijuana consumption will not pass this session. As originally introduced, Senate Bill 301 would have prevented employers in Oregon from banning marijuana consumption by their employees during nonworking hours, provided that the consumption did not lead to on duty impairment. Additionally, collective bargaining agreements could still have prohibited off-duty use of marijuana without running afoul of the new law.
The bill ultimately died because of strong opposition from industry on two general grounds relating to worksite safety and federal law. In written testimony before the Judiciary Committee, representatives from the Oregon Association of Hospitals and Health Systems and the Oregon Columbia Chapter of Associated General Contractors, focused on federal law preemption and more specifically on the federal Drug-Free Workplace Act. These representatives argued that SB 301 would force employers that either contract with or receive grants from the federal government to choose between violating federal law or violating Oregon state law.
These representatives also testified that the impairment exception was meaningless, noting that there are no available technologies for reliably testing for marijuana impairment. Since marijuana remains present in the body long after use, employers contend it is simply not possible to determine whether employees are under the influence of cannabis while on their jobs.
Supporters of the bill dismissed these concerns, arguing that the various exceptions would still have permitted employers to restrict marijuana use by employees working on federal contracts and pursuant to collectively bargaining agreements. Beth Creighton, of the Oregon Affiliate of the National Employment Lawyers Association, testified that “[t]hese exceptions create a balance between the rights of Oregonians as individuals to engage in legal activities and the rights of employers to provide a safe workplace.“
Senator Prozanski sought to salvage the bill by amending it to cover only medical marijuana cardholders. This watered-down version managed to squeak through the Senate Committee on Judiciary, but Oregon’s Senate Democrats ultimately decided it would not be able to pass the full Senate and they pulled it from consideration.
We will have to wait until next session to see if Senator Prozanski, or someone else, takes up this cause once again. In the meantime, in Oregon, as in most states, employees can relatively easily be terminated for consuming cannabis during off-hours.