Marijuana & Union Employees

While marijuana use remains illegal under federal law, the changes in state law are driving changes in the general public's perception of marijuana.

Question: how does public perception of marijuana effect an Oregon employer's ability to discipline a Union employee's use of marijuana at the workplace or working under the influence of marijuana?

Answer: Oregon's July 1, 2016 legalization of recreational marijuana did not legalize workplace marijuana use. Oregon employers may still discipline, including terminate, a Union employee for working under the influence of marijuana and/or using marijuana at the workplace. However, Oregon's legalization of recreational marijuana may have an effect on an arbitrator or court's determination about whether just cause exists for discipline based on a Union employee working under the influence of marijuana or using marijuana at the workplace.

If marijuana is not addressed in the Collective Bargaining Agreement, we strongly urge that the employer adopt a written policy addressing workplace marijuana to eliminate a Union employee's contention that s/he did not know that workplace marijuana was prohibited and grounds for discipline up to and including discharge. However, a written marijuana workplace policy is not, unfortunately, a cure-all. The following is case in point.

In a recent Connecticut case, the court ultimately affirmed an arbitrator's decision to reinstate a Union public employee who had been terminated for one-time use of marijuana at work during a break. State v. Conn. Emples. Union Independent, 2016 Conn. LEXIS 244, (Conn. Aug. 1, 2016). In deciding whether the employer had just cause to terminate the employee, the arbitrator considered the nature of the violation, the facts surrounding the violation, the employer's drug-free workplace policy which permitted but did not mandate termination, and the employee's discipline history. The arbitrator reinstated the employee with a six month unpaid suspension, random drug and alcohol testing at the employer's discretion, and a last chance warning.

The public employer appealed the arbitrator's reinstatement decision to the Connecticut court, even though courts have limited ability to review an arbitrator's award. The Connecticut court accepted the appeal to determine whether the arbitrator's award violated a clear public policy. While the trial court vacated the arbitrator's reinstatement award based on public policy grounds (workplace marijuana use has an adverse effect on workplace safety and security concerns, and to reinstate employee would send improper message that personal stress excused misconduct), the Connecticut Supreme Court, emphasizing its general deference to an arbitrator's award, ordered the trial court to affirm the arbitrator's reinstatement decision, even though recreational use of marijuana was both illegal in Connecticut and against the workplace policy.

Bottom Line: Employers who are unionized, be forewarned, you may not have the carte blanche ability to terminate a Union employee for using marijuana in the workplace.

If you have any questions about employees working under the influence of marijuana or marijuana use in the workplace, reach out to Gordon L. Osaka, Attorney at Law, P.C.