DJC Op-Ed: 2019 Oregon Legislation: Marijuana and Workplace Safety Posted on February 25, 2019 by Karla Holland By: Mike Salsgiver Executive Director, AGC Oregon-Columbia Chapter This article was published by the DJC on February 19 in Buildings Bridges and Roads, and can be viewed here (subscription required). In 2019, the Oregon legislative session is off to the fastest start in recent history. It kicked off at the end of January and is showing no signs of slowing. The construction industry can be greatly impacted by an unusually large number of proposed bills. Two marijuana-related bills up for debate present serious safety concerns. Senate Bill 379 and House Bill 2655 would make it unlawful for employers to take action against employees for off-duty use of legal substances (i.e., marijuana). Earlier this month, AGC organized several industry stakeholders to testify in opposition to SB 379. From the construction industry to the broader business community, opponents laid out numerous concerns. AGC also submitted a one-page brief in opposition with roughly 33 logos from both public and private entities illustrating their support of our position. There are four major issues we see with the proposed legislative change: safety concerns, technology limitations, federal contracting, and federal pre-emption. SB 379 would undermine workplace safety, given that an employer would be prohibited from enforcing the routine drug-free-workplace policy when testing its employees for cannabinoids. Our employees work in safety-sensitive situations. It’s clear this change would severely jeopardize employers’ ability to maintain a safe workplace for their employees and those who interact with those businesses. Our employees operate heavy machinery, work below grade, and work several stories up. There is a duty to keep themselves, subcontractors and structures’ future occupants safe. Safety is a driving force in our industry and is a continuous learning opportunity. Also a concern is that with the lack of technology to test for impairment, this bill would rule out a drug-free-workplace policy and lead to an increase in the uncertainty of a safe workplace. Additionally, drug testing fails to reveal when marijuana was used – i.e., whether it was during working hours or “nonworking hours.” The current testing process is limited to confirming whether an employee has marijuana in his or her system and how much. It does not determine whether someone is “under the influence” or impaired. In the public hearing on SB 379, there were questions related to those employees who have prescriptions for other drugs, such as opioids. Those instances are protected under federal and state laws that require an employer to reasonably accommodate an employee’s disability and treatment with medication even if that off-duty use of a medication may affect the employee’s performance in the workplace. Ultimately, our contractors need to know their employees are not impaired while working. Without a current test for impairment, this is a big problem that does nothing to increase safety on a jobsite. 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 would be impossible. Employers working on federal projects would be forced to choose between compliance with federal law or state law. Not only is the proposed legislation nearly nullified under federal pre-emption, due to the conflict between federal and state laws, it would place employers in a nearly impossible situation. SB 379 would be pre-empted 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 on the same point. 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 or she still impaired 24 hours later? That is possible. AGC has worked in tandem with SAIF for many years to ensure jobsites are operating under best practices. We work to ensure accidents don’t happen, and part of that is due to a drug-free-workplace policy. One of the hallmarks of AGC’s approach to public policy is that we come to the table thoughtfully, focused on finding 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 craft a safety-focused solution in a rapidly-changing social environment. Mike Salsgiver is the executive director of Associated General Contractors’ Oregon-Columbia chapter. Contact him at 503-685-8305 or email@example.com.