With cannabis consumption becoming more common and accepted across the United States, many states have begun loosening restrictions regarding pre-employment drug testing for cannabis.
For example, starting Jan. 1, 2024, CA AB 2188 and ESSB 5123 went into effect in California and Washington, eliminating pre-employment drug testing for cannabis. While employers in the two states still hold the right to test employees if they have reason to believe that an employee may be consuming cannabis while at work, they can no longer discriminate for cannabis consumption off the clock.
While this is a major step for cannabis legalization, Oregon, which is the second-largest producer of cannabis in the country, does not have any similar laws in place. As a result, Oregon employers still hold the right to not only test employees for cannabis use, but also not hire, and even fire employees for off-duty cannabis consumption.
In 2017, three years after the recreational legalization of cannabis in Oregon, Sen. Floyd Prozanski introduced Senate Bill 301, which would have provided some leniency for medical cannabis consumers. The bill states, “It is an unlawful employment practice for an employer to refuse to employ an individual or to discharge or otherwise penalize an individual because: The individual is a registry identification cardholder (cannabis medical card), as defined in ORS 475B.410, and the individual tested positive for cannabis.” However, the bill proved unsuccessful after being proposed in 2017.
In 2019, Legislative Concept 2152, was also introduced by Sen. Prozanski, stating, “It is an unlawful employment practice for any employer to require, as a condition of employment, that an employee or prospective employee refrain from using a substance that is lawful to use under the laws of this state during non-working hours except when the restriction relates to a bona fide occupational qualification or the performance of work while impaired.”
However, like HB 301, Legislative Concept 2152 also failed to be passed, and little information can be found regarding the concept.
More recently, HB 3428 was introduced in Oregon on Feb. 27, 2023, sponsored by Rep. Rob Nosse. This bill would eliminate pre-employment drug testing or discrimination against off-duty cannabis consumption specifically for healthcare workers.
The bill states, “A public health care employer may not deny employment to a prospective employee or take an adverse employment action against an existing employee solely on the basis that the prospective employee or the existing employee has tested positive for cannabinoid metabolites in connection with any employment-related drug test required by the employer.”
However, before this bill is passed, a required collaborative study must be conducted, by the Department of Consumer and Business Services, Bureau of Labor and Industries and Oregon Health Authority, “regarding best models for use by public healthcare employers in addressing workplace issues related to marijuana use and detection of impairment.” While this study could change how cannabis consumption is observed both in and out of the workplace, the study could take up to Jan. 1, 2025 to complete.
While Oregon has no laws currently preventing pre-employment cannabis drug testing, there have been multiple attempts toward eliminating it in the past. However, with both Wash. and Calif. eliminating pre-employment cannabis testing, many states are expected to follow suit, including Oregon.
