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Medical Marijuana creates dilemma for Oregon businesses
| RedOrbit.com | by Mike Salsgiver

The Oregon Medical Marijuana Act passed 10 years ago through a ballot initiative. Since then, it has become one of the most contentious public policy dilemmas facing Oregon's employers.

In each of the last two regular legislative sessions -- and even during the 2008 special session -- employer groups have tried to bring clarity to a law that puts employers between the proverbial rock of legal concerns and the hard place of safety concerns.

When Oregonians were considering the measure, they were doing so in the context of a statewide ballot measure campaign. The images presented in the media and through direct mail and other advertising were of individuals suffering from debilitating illnesses like cancer, who were struggling to keep their medications down because of the extreme nausea caused by chemotherapy. Oregon's voters were casting a ballot to allow those very ill individuals to use marijuana to provide relief where traditional medicine could not.

With nearly 16,000 cardholders in Oregon, a medical marijuana card has become much more than the medicine of last resort for the terminally ill that the campaign suggested it would be.

Instead, it has become a sort of alternative medicine used for common ailments such as back pain. Setting aside the merits or demerits of marijuana use, the increased utilization and expansion of the law has created a collision between cardholders and employers that was not originally contemplated when the law passed.

For the last four years the issue of whether employers must accommodate medical marijuana cardholders (in the same way that employers would accommodate employees using other prescription drugs) has been litigated in the courts and debated in the halls of the Legislature. One case, Washburn v. Columbia Forest Products, made its way to the Oregon Supreme Court, only to result in an inconclusive opinion. Another case is pending before the Oregon Court of Appeals and is unlikely to be resolved for at least another year or two.

In both of these cases, employers terminated employees who tested positive on a urinalysis drug test for marijuana. The employees each had medical marijuana cards and sought protection for unlawful termination. The Oregon Bureau of Labor and Industries interpretation is that employers have an obligation to accommodate because the people of Oregon have determined marijuana to be medicine.

What about the language in the law that said an employer wouldn't have to accommodate the medical use of marijuana in the workplace? The courts have, to date, taken a very literal view of that language. In other words, employers need not accommodate the use of medical marijuana on their jobsites. However, if the use was elsewhere, then accommodation may be necessary.

And all of the Oregon case law doesn't begin to address the issue in the context of federal law, which bans marijuana use altogether.

Employer groups have repeatedly then turned to the Oregon Legislature to clarify the law. In 2005, legislation passed the Oregon House that would have enabled all employers to follow their drug-free workplace policies -- in short, accommodation of medical marijuana would not have been required. The Oregon Senate, however, failed to pass the bill. In 2007, the same bill passed the Oregon Senate, but stalled in the House. In the latest special session of the Legislature, another attempt was made to pass a narrower version of the bill that would have provided protections for employers in hazardous occupations like construction, mining, forestry and metals. Unfortunately, like the other two attempts, this bill also fell victim to legislative disagreements and failed to move.

Enough is enough. Oregon employers deserve certainty on this issue. The theoretical debate in the courts or the political debate in the Legislature doesn't get the job done for Oregon contractors who need to be able to enforce their drug-free workplace policies to ensure the safety of their workers and the public. This issue has, at times, been highlighted with a slew of humorous headlines and jokes. But it is not funny to employers who face liability on the one hand if they terminate an employee with a medical marijuana card, or even more liability on the other hand if an accident occurs that involves that employee.

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