Medical Marijuana and the Workplace, Again

I've blogged before (most recently here) about how the proper use of medical marijuana in Oregon doesn't protect one from being fired for a positive drug test--same in California.  Of note though is the fact that the Oregon ruling was rather narrow.  Pulling a quote from that previous post...

A trial court sided with the company, saying that Washburn was not disabled under Oregon law because prescription medicine offered him relief from the leg spasms.

But the Oregon Court of Appeals overturned the lower court, ruling the definition of disability had to be interpreted more broadly.

The Oregon Supreme Court rejected that reasoning, siding with the trial court.

A person must suffer from a "substantial limitation" to justify medical marijuana use, and loss of sleep from leg spasms simply did not rise to that level, the court said in an opinion by Chief Justice Paul De Muniz.

Never mind the fact that Washburn had tried several prescription medications for his leg spasms and had gotten no relief.  He even offered to take blood tests to prove he wasn't impaired on the job, but his employer--Columbia Forest Products of Klamath Falls--refused on principle, not because blood tests are more expensive.

Now there is a rather similar case working its way through the courts. 

The Oregon Court of Appeals has ruled that an employer must make a reasonable accommodation for medical marijuana use for a disability.

In an opinion issued Wednesday, the appeals court upheld a ruling by the state Bureau of Labor and Industries.

The agency said that Emerald Steel Fabricators in Eugene violated state laws barring discrimination against the disabled by discharging an employee who used medical marijuana.

No doubt this will be appealed.  Some, including the federal government, oppose drug use 24/7, not just on the job.  There are also legitimate concerns about the potential hazards of having impaired workers on the job.  This goes back to the issue that the vast majority of employers test to see if someone has used drugs recently, not whether that person is impaired on the job for any reason (latter half of previous blog here)--including lack of sleep.  The few companies that use impairment testing view it as a safety program, not an anti-drug initiative. 

In the opinion by Judge Timothy Sercombe, the Oregon Court of Appeals went back over the 2006 Oregon Supreme Court ruling to emphasize the Emerald Steel employee never used the marijuana at work — just like the worker in the Columbia Forest case.

The appeals court also noted the Oregon Supreme Court did not address some of the defenses raised in the earlier case, including the argument an employee could be affected by medical marijuana use while on duty or in "safety-sensitive positions."

It also rejected an attempt by Emerald Steel to raise new issues on appeal, including the fact that marijuana remains illegal under federal law despite state law allowing its use for medical purposes.

"Accordingly, we will not consider those issues for the first time on review," Sercombe wrote.

Obviously, federal law looms over this issue.

Comments

[Ten Bears]

Another thing to consider - what happens when a cop pulls you over? Registration with the state flags the user, via DMV records, as at any given time being "under the influence". These upholdigs have to potential to justify a DUII.

[Jeff]

Let 'em toke up and work... and the first time someone on MM kills someone, fire 'em all.

Oh, and then sue the employers for not having fired them earlier.

Consistency is the... well, you know the rest. :)

Personally, I would look askance on someone who toked up regularly, for whatever reason, working in an industry that included the terms "forest products" or "steel" in it's name. There are legitimate safety concerns I believe.

[RoguePundit]

In the earlier instance, the worker maintained heavy equipment in what was designated as a safety-sensitive position. He smoked to relieve the pain in the evening so he could then fall asleep. The more recent case involves an employee in a machine shop who worked with drill presses, lathes, mills, etc. He smoked 1-3 times a day--sometimes during the work day but not on company property--for partial relief of nausea and stomach cramps. He also takes medications for depression, anxiety, panic attacks, etc....not sure if the nausea/cramps are symptoms and/or caused by the drugs.

Muddying this latest case is the following. When the company hired the employee, it was through a staffing agency which didn't show the employee the standard form the company has for being a drug-free workplace...the use of MM didn't come up. The company would hire folks on a 90-day trial before possibly bringing them on as permanent employees. The employee was evidently doing fine, but as the 90 days was close to over, he asked his supervisor about being hired permanently. That would involve a drug test, which is when the use of MM came up. The supervisor hadn't suspected MM use, and had to check with his boss on how that might impact the hiring. A week later, the employee was let go. Amongst the many findings in the case is that the company "could have reasonably accomodated the complainant."

Maybe being under the influence is what made him capable of not being impaired?

[JustaDog]

I have no problem with even non-medical MJ use by adults - it's far safer than booze.

If we had a smart government they'd allow MJ for adults - just like cigarettes. Think of all the tax revenue they'd get!

What blocks this? The booze lobby and politicians that somehow rationalize booze is safer than MJ.

Uh - how many 10's of thousands have been killed each year by booze? Uh yeah, right.

[Ten Bears]

Damn Dog! We agree again!