Seyfarth Synopsis: Oregon became the first state to decriminalize the personal possession of illegal drugs, including cocaine, heroin, oxycodone, and methamphetamine.
Oregon voters passed Measure 110 last week by a wide margin. The ballot measure reclassified possession of small amounts of a list of hard drugs as a Class E civil violation, similar to a traffic offense. A violator can avoid the associated $100 fine by agreeing to participate in a health assessment. Possession of larger quantities of drugs will still be criminal acts, most classified as misdemeanors. Selling and manufacturing drugs remain criminal. The state decriminalization provisions take effect on February 1, 2021. Of course, the hard drugs decriminalized in Oregon are still criminally enforceable by federal authorities under the federal Controlled Substances Act.
The Oregon decriminalization follows similar efforts in some European countries who have addressed minor drug possession from a public health perspective, rather than criminal justice. Depending on changing societal attitudes towards drugs and the perceived success of the Oregon program, this new approach may be adopted by other states in the coming years.
If state legalizations of recreational marijuana provide any guide, Oregon’s Measure 110 also may lead to increased positive drug tests and workplace impairments by hard drugs, at least in the short term. Employers may and should still prohibit the possession of and impairment by these drugs in the workplace. Anticipating laxer attitudes towards hard drugs in Oregon, employers would be wise to train managers on reasonable suspicion factors and retrain employees on workplace zero tolerance policies, particularly for employees in safety sensitive positions. For assistance in updating your drug policies and training employees to comply with changing state law, contact outside counsel.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.