One of the most common questions I hear from clients is: "We have an employee with a medical marijuana card; what do we do?" Employers often are unsure about their rights and responsibilities when it comes to dealing with employees who hold the legal right to smoke marijuana in the state of Oregon. Many are concerned that such employees are immune from discipline, and have the legal right to smoke pot in the workplace without consequences. Others believe firmly that they can terminate any such employee without a second thought, but want confirmation before they pull the trigger. Here are some solutions to this common scenario.
As of Jan. 1, there were 26,274 Oregon residents who were carrying valid medical marijuana cards issued by the state. Presently, 14 states, including Oregon, Washington and California, have some sort of law permitting its usage.
How easy is it for one of an employee to obtain the right to smoke medical marijuana? In 2009, over 96 percent of people who applied for the card in Oregon were able to receive one. In other words, it's a lot easier to get a medical marijuana card than it is to obtain a driver's license. About 8,000 residents of Multnomah, Washington and Clackamas counties have the right to use medical marijuana. It's likely that most firms either have an employee with a medical marijuana card or will have one in the near future. Employers should understand their rights and responsibilities.
The law passed via voter referendum in 1998, and it includes language informing employers that they have no obligation to "accommodate the use of medical marijuana in the workplace." However, some expansionist judges have read that language very narrowly. In 2005, the Oregon Court of Appeals reinstated a disability discrimination lawsuit brought by an employee who was fired for testing positive for marijuana at work despite the fact he had a medical marijuana card (Washburn v. Columbia Forest Products). The Court of Appeals held that unless the employer could prove definitively that the employee "used" the marijuana while at work, or that the employee was somehow impaired while at work, it could not simply terminate the employee without running afoul of the law. The trouble is that there is no definitive test that proves that an employee is impaired by marijuana.
Shortly after that decision, the U.S. Supreme Court waded into the debate by ruling (in another case) that the federal government retains the right to prosecute marijuana users under federal law, despite any state laws permitting marijuana usage. The Oregon Department of Justice warned medical marijuana users to proceed at their own risk of federal prosecution, but that it would not shut down the program. In 2006, the Oregon Supreme Court overturned the earlier Washburn decision - but on other grounds - although one of the justices signaled in a non-binding statement that Oregon courts should not be punishing employers who prohibit practices that are illegal under federal law.
Fast-forward to the present day. The state Legislature has failed to pass any legislation that would provide clarity on the issue or provide relief to worried employers, despite several attempts. The Court of Appeals once again handed a loss to employers in 2008, by ruling in favor of a medical marijuana user who was terminated at work (BOLI v. Emerald Steel Fabricators). And the Oregon Supreme Court has once again agreed to revisit the decision on appeal. That decision could come down any day now, and most court observers are unsure how the decision will impact the employment landscape. With all of this uncertainty, what is an employer to do?
Employers have various options. Generally, employers that wish to take an aggressive approach can inform all of their employees that they take a "zero tolerance" approach to all illegal drugs, including medical marijuana, and discipline all employees who test positive consistently. Although there is some obvious legal risk to this approach, employers can feel somewhat confident that the tide appears to be turning in their favor, and courts in California and Washington seem to support this approach.
A moderate approach would be to treat any request for a pass because of medical marijuana use like a request for a reasonable accommodation under disability law. Although employers are obligated to accommodate employees with medical conditions, they generally have the right to choose which accommodation to apply, and employers can explore other options besides allowing marijuana use.
Employers desiring to take a very conservative approach could allow medical marijuana users to work with them unless they display obvious signs of impairment. However, these employers could run the risk of a negligence claim should that employee injure himself or others, because it is notoriously difficult to spot impaired activity, and there is danger that an accident triggered by marijuana use could lead to catastrophic damages and massive legal liability.
Employers should cross their fingers and hope that the Oregon Supreme Court provides finality to the issue in its upcoming decision. Until then, employers might feel like they are caught between a rock and a hard place in deciding how to approach the matter.
NewsHawk: Ganjarden: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: DAILY JOURNAL OF COMMERCE
Author: Rich Meneghello
Contact: DAILY JOURNAL OF COMMERCE
Copyright: 2010 DAILY JOURNAL OF COMMERCE
Website: Employees with medical marijuana
As of Jan. 1, there were 26,274 Oregon residents who were carrying valid medical marijuana cards issued by the state. Presently, 14 states, including Oregon, Washington and California, have some sort of law permitting its usage.
How easy is it for one of an employee to obtain the right to smoke medical marijuana? In 2009, over 96 percent of people who applied for the card in Oregon were able to receive one. In other words, it's a lot easier to get a medical marijuana card than it is to obtain a driver's license. About 8,000 residents of Multnomah, Washington and Clackamas counties have the right to use medical marijuana. It's likely that most firms either have an employee with a medical marijuana card or will have one in the near future. Employers should understand their rights and responsibilities.
The law passed via voter referendum in 1998, and it includes language informing employers that they have no obligation to "accommodate the use of medical marijuana in the workplace." However, some expansionist judges have read that language very narrowly. In 2005, the Oregon Court of Appeals reinstated a disability discrimination lawsuit brought by an employee who was fired for testing positive for marijuana at work despite the fact he had a medical marijuana card (Washburn v. Columbia Forest Products). The Court of Appeals held that unless the employer could prove definitively that the employee "used" the marijuana while at work, or that the employee was somehow impaired while at work, it could not simply terminate the employee without running afoul of the law. The trouble is that there is no definitive test that proves that an employee is impaired by marijuana.
Shortly after that decision, the U.S. Supreme Court waded into the debate by ruling (in another case) that the federal government retains the right to prosecute marijuana users under federal law, despite any state laws permitting marijuana usage. The Oregon Department of Justice warned medical marijuana users to proceed at their own risk of federal prosecution, but that it would not shut down the program. In 2006, the Oregon Supreme Court overturned the earlier Washburn decision - but on other grounds - although one of the justices signaled in a non-binding statement that Oregon courts should not be punishing employers who prohibit practices that are illegal under federal law.
Fast-forward to the present day. The state Legislature has failed to pass any legislation that would provide clarity on the issue or provide relief to worried employers, despite several attempts. The Court of Appeals once again handed a loss to employers in 2008, by ruling in favor of a medical marijuana user who was terminated at work (BOLI v. Emerald Steel Fabricators). And the Oregon Supreme Court has once again agreed to revisit the decision on appeal. That decision could come down any day now, and most court observers are unsure how the decision will impact the employment landscape. With all of this uncertainty, what is an employer to do?
Employers have various options. Generally, employers that wish to take an aggressive approach can inform all of their employees that they take a "zero tolerance" approach to all illegal drugs, including medical marijuana, and discipline all employees who test positive consistently. Although there is some obvious legal risk to this approach, employers can feel somewhat confident that the tide appears to be turning in their favor, and courts in California and Washington seem to support this approach.
A moderate approach would be to treat any request for a pass because of medical marijuana use like a request for a reasonable accommodation under disability law. Although employers are obligated to accommodate employees with medical conditions, they generally have the right to choose which accommodation to apply, and employers can explore other options besides allowing marijuana use.
Employers desiring to take a very conservative approach could allow medical marijuana users to work with them unless they display obvious signs of impairment. However, these employers could run the risk of a negligence claim should that employee injure himself or others, because it is notoriously difficult to spot impaired activity, and there is danger that an accident triggered by marijuana use could lead to catastrophic damages and massive legal liability.
Employers should cross their fingers and hope that the Oregon Supreme Court provides finality to the issue in its upcoming decision. Until then, employers might feel like they are caught between a rock and a hard place in deciding how to approach the matter.
NewsHawk: Ganjarden: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: DAILY JOURNAL OF COMMERCE
Author: Rich Meneghello
Contact: DAILY JOURNAL OF COMMERCE
Copyright: 2010 DAILY JOURNAL OF COMMERCE
Website: Employees with medical marijuana
