SB 379 is in direct conflict to the Oregon Supreme Court's decision in the Emerald Steel case, which held that Oregon employers are entitled to enact 'zero tolerance policies' on marijuana use.
In 2010, The Oregon Supreme Court ruled in the case of Emerald Steel Fabricators, Inc., v. Bureau of Labor and Industries, and found that the use of medical marijuana, though authorized by state law, was an "illegal use of drugs" under federal law, which preempts state law in these circumstances.
The Court held that employers can lawfully take adverse employment actions against employees based on their use of federally-illegal drugs. It upheld an employer's right to implement 'zero tolerance' drugfree workplace policies.
In 2014, employer rights were again upheld by Oregon voters who voted in support of Measure 91, which specifically precluded "amend[ing] or affect[ing] in any way any state or federal law pertaining to employment matters" (Section 4. Article 1).
SB 379 is preempted by the Drug-Free Workplace Act.
Maintaining a drug-free workplace ensures the safety and well-being of employees, the public, and the customers they serve. Furthermore, employers with federal contracts are required to maintain drug-free workplaces as a matter of federal law.
The Drug-Free Workplace Act requires employers who receive grants or contracts from the federal government (construction companies, hospitals and long-term care facilities, among others) to ensure that their workplaces are drug-free. Drug testing will not reveal whether an employee with marijuana in his or her system used it during working hours or during “non-working hours” (a term in SB 379 that might be interpreted to include meal breaks), much less whether the marijuana was used on the employer’s premises or not. This would make it impossible for an employer to comply with the federal requirements.
There are no recognized tests for impairment due to marijuana use.
The exception in SB 379 for off-duty marijuana use that impairs employees’ performance on the job cannot be implemented, because currently, there is no recognized test for whether an employee is “impaired” by the use of marijuana (off duty or not). Current testing protocols can do no more than confirm whether an employee has marijuana in their system, not whether it results in impairment or being “under the influence.”
Without a drug test that measures impairment, an employer's efforts to maintain a safe work environment are compromised.
An employee’s use of legal prescription drugs is already protected.
Both the Americans With Disabilities Act (“ADA”) and Oregon disability law require an employer to reasonably accommodate an employee’s disability and the treatment of a disability with medication, including situations in which off-duty use of medication affects the employee’s performance at work. A well-developed body of federal and state case law tells an employer whether an accommodation is or is not “reasonable.” SB 379, on the other hand, imposes no such limitation: an employer may not limit employees’ off-duty use of any lawful substances except to the extent it causes an impairment at work or relates to a bona fide occupational qualification.