Oregon Marijuana in the Workplace

Medical marijuana law gives businesses pause

There's ambiguity on how to enforce drug and alcohol policies

By Greg Stiles
Mail Tribune
November 10, 2009 5:00 AM

Conflicting state and federal laws have made it increasingly difficult
for employers to spell out and enforce workplace alcohol and drug
policies.

"We have this great confusion in the law because of the differing
federal and state laws on the medical marijuana issue," attorney Paula
Barran told a gathering of The Chamber of Medford/Jackson County Monday
afternoon at Rogue Valley Country Club.

"The law is, frankly, the biggest mess that I've ever seen," Barran
said. "Employers like you don't know what to do or how to handle drug
issues, and we have a lot of issues."

Forced to deal with increasing drug use in the work force, employers
frequently don't know which steps to take, she said.

"We live in a state where a lot of employers have this sense that 'I
really shouldn't be telling people how to live their lives,' " Barran
said.

She countered that notion with elements of federal law.

Occupational Safety and Health Administration standards include a
general duty clause requiring employers to provide a safe workplace.

"That should be the first motivator," Barran said, adding employers
could run into legal trouble if they hired or kept an employee who was
unfit for duty and caused injury to others.

She said employers should be clear with workers what the rules are, how
they are enforced and what the consequences are for violating them.

Barran said drug use is problematic in Oregon, and the legalization of
medical marijuana has created additional strains.

Adult marijuana use is 50 percent higher than the national average,
Oregon ranked No. 7 in per-capita abuse of methamphetamine and,
according to the state Human Services Department, 302,000 people —
10 percent of the population — need treatment.

Barran said medical marijuana was presented to voters as a palliative
measure for critically ill patients but that's rarely the profile of the
typical medical marijuana card holder.

"The morning after was the real problem for us," she said. "Because all
of the sudden, it turned out that medical marijuana was not being doled
out to people with serious debilitating diseases or in the last stages
of some fatal illnesses."

Of the nearly 25,000 medical marijuana card issued in Oregon, just more
than 21,000 cards were for "severe pain," while slightly more than 1,000
were for cancer patients, Barran said. In the past 12 months, she noted,
there have been more than 13,000 new applicants and almost 12,000
applications for renewal; 851 applications were denied.

The growing number of medical marijuana cards has given employers pause
and made Oregon an attractive place for drug users.

"Those of us who live in this state and love this state have to be
saddened by the thought that we may become a magnet for people who are
not coming to contribute to the life we have, but to possibly engage in
activities that are destructive of that life."

She said 77 percent of Oregon employers report substance abuse is a
concern, with more than 5 percent of people tested for illegal drug use
failing. In parts of Oregon, pre-hiring drug test failure is 60 percent,
which is 50 percent higher than the national average.

"If you look at people in the unemployment ranks," she said, "about a
third of them are really functionally unemployable because they have
some sort of serious drug abuse problem."

A pending case before the state Supreme Court involving Emerald Steel
will unravel some of the issues, she said.

In that case, the state Court of Appeals upheld a ruling by the state
Bureau of Labor and Industries that the steel fabrication company in
Eugene violated state laws barring discrimination against the disabled
by discharging an employee who used medical marijuana. A key issue was
the fact the employee never used marijuana in the workplace.

The case is on appeal to the Supreme Court and Barran said its ruling
could affect many employers in the state.

"You need to pay attention to that one," she said.

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Reach reporter Greg Stiles at 776-4463 or e-mail
business@mailtribun e.com.

Workplace drug and alcohol policies

Employers should have an alcohol and drug policy that spells out:

* What is expected.
* What is prohibited.
* How it will be enforced.
* What are the consequences for a violation.

The employers should communicate the policy and enforce it evenhandedly.

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