Editor’s note: As Wisconsin lawmakers consider Gov. Tony Evers’ proposal to decriminalize the use of small amounts of marijuana, their counterparts in Oregon are struggling with their state’s decision to legalize the drug in 2015 means for workplace safety. The following column from the executive director of Associated General Contractors’ Oregon-Columbia chapter takes a look at recently proposed marijuana-related legislation and how it could affect the construction industry.
The two marijuana-related bills the Oregon Legislature is moving to take up this year both present serious safety concerns for our industry.
Senate Bill 379 and House Bill 2655 would make it unlawful for employers to take action against employees for the off-duty use of the legal substances such as marijuana.
Earlier this month, AGC organized several industry officials to testify in opposition to SB 379. Representing not just the construction industry but businesses of all stripes, opponents laid out a list of objections. AGC also submitted a one-page brief showing the logos of roughly 33 public and private entities that share our concerns.
There are four big drawbacks we see to the proposed legislative changes. These have to do with safety concerns, technology limitations and federal law.
SB 379 would undermine workplace safety by prohibiting employers from enforcing routine drug-free-workplace policies when testing employees for cannabinoids.
Our employees work in sometimes dangerous situations. They operate heavy machinery and work both below grade and several stories up. They have a duty to keep themselves, subcontractors and the future occupants of the buildings they are working on safe. Safety is a driving force in our industry.
Also of concern is the current lack of any sort of technology that can be used to test for impairment. This currently proposed legislatoin would rule out a drug-free-workplace policy and lead to an increase in uncertainty. Additionally, current drug-testing methods cannot reveal when marijuana was used – that is, whether it was used during working hours or “nonworking hours.”
Testing is now limited to confirming whether employees have marijuana in their system and, if so, how much of it is there. It does not determine whether someone is “under the influence” at a given moment.
In a public hearing held on SB 379, there were questions related to employees who have prescriptions for other drugs, such as opioids. The use of such drugs is allowed under federal and state laws that require employers to reasonably accommodate employees’ disability and treatment with medication even if the off-duty use of a medication might affect performance in the workplace.
Ultimately, our contractors need to know their employees are not impaired while working. In the absence of a test for impairment, these legislative proposals will do nothing to make job sites safer.
Another crucial consideration relates to federal contracting. Some AGC members contract with the federal government for projects such as highway construction. Compliance with the federal Drug-Free Workplace Act is required for federal contractors. But SB 379 would cause a direct conflict with the Drug-Free Workplace Act and put Oregon construction companies in an untenable position because compliance with both federal and state rules would be impossible. Employers working on federal projects would be forced to choose between compliance with federal law or state law.
The proposed legislation is not only nearly nullified by federal law, owing to the conflict between federal and state laws; it would also place employers in a nearly impossible situation. SB 379 would be forestalled by the federal Controlled Substances Act, meaning that the state of Oregon would not be able to enforce a law that conflicts with federal law. And even though federal law would ultimately supersede Oregon’s law, employers would have to engage in costly litigation to battle this out in the courts.
While technology may catch up down the road – and at that point perhaps we could reach a more reasonable option – we aren’t there yet. Impairment leaves a lot unanswered. We don’t know how long it lasts; if someone smokes marijuana, is he still impaired 24 hours later? That is possible.
The AGC has worked in with the State Accident Insurance Fund, which provides Oregon employers with worker’s compensation insurance, for many years to ensure jobsites are operating under best practices. We work to ensure workplaces are free of accidents. Our drug-free-workplace policies have been a big help as we strive to reach that goal.
One of the hallmarks of AGC’s approach to public policy is that we come to the table thoughtfully, concentrating on solutions. This situation – while critical to the safety of our employees and the public – is no different. As the 2019 session progresses, we will continue working with the proponents of these bills and other legislators to develop safe policies amid the many changes we are seeing in society.
Mike Salsgiver is the executive director of Associated General Contractors’ Oregon-Columbia chapter. Contact him at 503-685-8305 or firstname.lastname@example.org.