Medical marijuana law challenges Oregon workplace rules (OpEd)

February 21, 2004

Jerry Gjesvold, The Register-Guard

Since Oregon's medical marijuana initiative became law in 1998, more than 6,000 individuals have received medical marijuana cards. Given that many Oregon companies now test for drugs, it was inevitable that one or more cardholders would test positive, get fired and sue.

Now it's happened. Two cases are working their way through the courts, and the outcomes could affect employers throughout the state.

When the initiative passed, workers using marijuana under a doctor's recommendation were given basically the same rights as anyone undergoing treatment for illness or injury. In such cases, employers are generally expected to make a good-faith effort to accommodate the worker's needs - except when doing so would place hardship on the company or put safety at risk. Such an accommodation might involve reassignment or a leave of absence. The length of either would depend on the nature of the condition.

This would seem simple enough, but medical marijuana isn't used the same way as other drugs prescribed by doctors. The dosage is self-administered, and the 1998 law allows for the cultivation of up to seven plants at any one time.

Also, the active ingredient in marijuana accumulates over time in the fatty tissues of the body - most importantly, the brain. This is unlike alcohol, which is water-soluble and fully metabolized at a well-understood rate.

Additionally, studies show that the impairment that marijuana causes can be deceptive. Further, we don't know how long it takes to bring the effects to an acceptable level - especially for a job involving safety or accuracy - and how much this 'recovery' time varies from person to person.

All a positive drug test tells us is that someone has used marijuana within the last several days. But are they fit for duty? Who knows?

What all this means is that employers are faced with a real dilemma. They are expected to work with their ill or injured employees. Yet at the same time, they have a responsibility to provide a safe workplace - but now, with the presence of a drug that's not well understood. The two court cases may clarify the balance of these responsibilities.

Until that happens - and it could be any day - the following suggestions may be helpful. They're from Corbett Gordon, managing partner of the Portland office of Fisher and Phillips LLP, one of the country's largest law firms representing employers in labor law. (For a detailed discussion, see the Dec. 2003 issue of Oregon Civil Rights Newsletter.)

First, employers can, and should, require workers to notify their supervisor immediately that they have a medical marijuana card and are using the drug.

Second, companies should be clear how they define the word 'impaired,' and provide tests for fitness for duty.

Gordon writes: 'Close observation of all employees performing safety and accuracy-sensitive work remains the best practice.'

And third, in cases where the company is covered by federal regulations - where there is zero tolerance for marijuana - employees can be offered a transfer into a nonregulated position while they use marijuana to treat their illness or injury. A leave of absence might also be granted.

As in all worker's rights issues, employers will need to stay on top of current case law. Still, companies have been dealing for years with employees' medical conditions. Policies balancing the needs of both employer and employee have been worked out by individuals and in collective bargaining. Pending court cases will tell us more about how medical marijuana impacts that balance.

As Serenity Lane's statewide coordinator of employer services, Jerry Gjesvold helps companies across Oregon create and manage their drug-free workplace policies and programs.

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