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Protecting marijuana use conflicts with federal contract requirements

Graphic for Senate Bill 301Senate Bill 301 would modify a law that protects workers’ use of tobacco products to include the use of all substances that are legal in Oregon, adding marijuana to the list. The bill makes it an unlawful employment practice to require, as a condition of employment, that workers refrain from using a substance that is lawful during
nonworking hours. The bill provides employers exceptions for “bona fide occupational qualifications,” impaired performance and collective bargaining agreements.

Controversy has surrounded the bill because the state law and federal law are in conflict. Marijuana is a Schedule I controlled substance under federal law, and illegal in almost all uses. 

Lawyers debated how the 2015 legalization of marijuana use, under Measure 91, fit with federal law prohibiting use of illegal substances in the workplace.

Rob Bovett, legal counsel for the Association of Oregon Counties, said SB 301 directly conflicts with federal law on controlled substances and would likely be struck down.

“School districts have federal contracts and receive federal dollars,” said Lori Sattenspiel, OSBA interim director of legislative services. “These contracts require, in some cases, to certify a drug-free workplace. Those dollars could be in jeopardy if SB 301 passes.” 

Sattenspiel raised other pressing concerns before the Senate Judiciary Committee chaired by Sen. Floyd Prozanski (D-Eugene).

“Safety of our students and staff is a great concern,” she said. “How to measure if someone is on the job and impaired is a question that needs to be answered.”

There is no guidance or specific testing that can quickly and accurately determine if an employee has shown up for work impaired.

Marijuana users presented the law change as an issue of fairness. If usage doesn’t interfere with “bona fide occupational qualifications” or break Oregon law, then what people enjoy on their own time is their own business, proponents said.

“We have the opportunity to end employment discrimination against cannabis consumers,” said Leland Berger, a proponent of SB 301.

The bill has not been scheduled for further action.

Sen. Floyd Prozanski
Sen. Floyd Prozanski

- Lori Sattenspiel
Interim director of legislative services

lsattenspiel@osba.org