Weed rules: Can employers test for pot in Oregon?

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SALEM, Ore. (KOIN 6) — As Oregon prepares for the legalization of recreational marijuana, some are wondering what changes can be expected for drug testing in the workplace, both in and out of state.

Attorney Matt Goldberg with Cannabis Lawyers NW told KOIN 6 News it boils down to why a company is drug testing in the first place: Is it to prove someone is impaired on the job? Or, is it simply to find out if an employee has used marijuana at some point in the past?

“I think that we’re still going to be in an environment where private employers, for the most part, can test people for whatever drugs they want to and can take, more or less, whatever actions they want against those employees,” Goldberg said.

According to Goldberg, in Oregon — an at-will employment state — employers will still be able to fire workers who have tested positive for marijuana in their system, even after it becomes legal for recreational use. He said the tests are also not precise enough to indicate impairment.

“If you’re at will and you can be fired just because the employer decides it doesn’t like the way things are working out for you, then they’re going to be able to fire you for testing positive for marijuana,” Goldberg said. “Or they could fire you for testing positive for alcohol.”

Goldberg believes marijuana legalization won’t change that fact, even if it happens on a national level. However, what is bound to change is how employers define their drug policies. Once recreational marijuana becomes legal in Oregon, some employers are expected to update their drug testing policies to exclude pot.

But companies that retain policies against marijuana use can back their choice to fire someone who failed a drug test with federal law, which still defines marijuana as illegal.

“An employer who’s based out of state that has employees in a jurisdiction like Oregon, where it will soon be legal, or Washington, where it’s already legal, they will still be able to — generally speaking — apply their same testing regime that they originated under the law of some other state where it’s not legal,” Goldberg said.

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