Under bill, medical-marijuana users could be fired

March 14, 2007

Aaron Clark, Associated Press

Employers could fire medical-marijuana users who fail drug tests under a bill passed Wednesday by the Oregon Senate.

If it becomes law, the measure could shield employers from potential lawsuits filed by medical-marijuana patients who have been fired or disciplined for testing positive for the drug when they show up for work.

Without the bill, "employers will be left with individual lawsuits and appeals," said Sen. Rick Metsger, D-Welches. "I believe this is good policy for our state, and it is strongly supported by both labor and management."

For the 12 states that allow medical marijuana, the use of the drug by employees outside of the workplace is an increasingly complicated -- and legally contentious -- subject.

Michael Cohen, an employment attorney with the Philadelphia-based law firm Wolf Block, said that only California and Montana have provisions in their medical-marijuana statutes that clearly protect workers from being fired or disciplined if they are state approved users.

States that don't forbid employers from taking action against workers who use medical marijuana have created a gray area, legal experts say.

A lack of clear policy from lawmakers or legal rulings from state courts has muddied the issue that also pits state and federal law. The federal government classifies marijuana as having "no currently accepted medical use in treatment."

In testimony earlier this year, several medical-marijuana cardholders said the Oregon measure would unfairly penalize them.

They said that most drug policies are enforced through urine tests that don't determine if users are impaired, but only if they used cannabis within the past few weeks.

In Wednesday's debate, Sen. Floyd Prozanski agreed, calling the bill "a very broad sweep at dealing with an issue that is going to discriminate against individuals who have not violated the intent of the safe workplace."

"They are not impaired; they are not under the influence while they are at work," the Eugene Democrat said.

Prozanski said he would try to persuade the House to change the bill so that it would not discriminate against a workers who are cardholders under the Oregon medical-marijuana program.

Groups such as the American Civil Liberties Union, which opposed the bill, said that testing for impairment, rather than drug use, would be a more effective way of creating safe workplaces.

Several representatives of companies said they already enforce such policies in the interest of workplace safety and would fire an employee who tested positive for marijuana.

In California, the state Supreme Court has agreed to hear a case between a telecommunications company and Gary Ross, who uses medical marijuana for chronic back pain from injuries suffered while in the Air Force. Ross, who worked as a systems administrator for RagingWire Telecommunications, was fired after he tested positive for cannabis.

Last year, the Oregon Supreme Court ruled against millwright Robert Washburn, a registered medical-marijuana user who was fired from his job at a Columbia Forest Products plant after urine tests detected traces of the drug.

The court's decision avoided the central issue of marijuana use outside of the workplace, however, ruling that Washburn's leg spasms weren't debilitating enough to qualify him as disabled.

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