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Employers Stymied By Laws on Medical Marijuana Use
Oregon -- Among the challenging human resource issues for Oregon employers in the last decade is the question of how to handle employees who are legally using marijuana for disabling medical conditions such as cancer, glaucoma, AIDS or chronic pain.
If an individual qualifies for a medical marijuana card under Oregon's Medical Marijuana Act, the individual likely qualifies for protection under Oregon's disability laws as those laws have currently been interpreted. In the past, employers relied on their drug-free workplace policies and the MMA language that states: "Nothing in the Medical Marijuana Act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace," to keep marijuana out of the workplace.
The trial court in Washburn vs. Columbia Forest Products agreed that employers had the right to enforce drug policies with respect to any use of marijuana.
This year the Oregon Court of Appeals decided otherwise. In construing the above-referenced language from the MMA, the court held that employers may prohibit the use of marijuana at work; but the MMA does not relieve employers from any obligation to accommodate an employee's off-site use of medical marijuana. It further held that Oregon's disability laws require employers to evaluate whether they can reasonably accommodate an employee's use of medical marijuana -- regardless of any drug-free workplace policy.
This situation begs the question of how far an employer must go to accommodate a disability when an employee's choice of treatment is medical marijuana.
In the meantime, Columbia Forest Products has filed a petition for review with the Oregon Supreme Court. The Oregon Legislature is also considering an amendment to the disability laws that would clarify an employer's obligations to employ medical marijuana users. Until a legislative or judicial resolution is made, employers must tread carefully with an employee who presents a valid medical marijuana card.
Must employers accommodate medical marijuana use?
The answer to this question is, maybe. The Court of Appeals stated that its ruling is not a mandate to accommodate all medical marijuana users in the workplace. As with any disability, an employer must explore whether a reasonable accommodation could allow the employee to continue to work while using medical marijuana. This means that when an employee tests positive for the use of marijuana and is able to produce a valid medical marijuana card, the employer must initiate an accommodation dialogue before any termination decision can be made. The same would be true when an employee makes a voluntary disclosure of a medical marijuana card.
Like any disability accommodation situation, the factors that weigh in favor of or against a medical marijuana accommodation are not clear, leaving the employer in a risky situation. The standard is whether the accommodation is "reasonable," and whether something is reasonable is usually in the eye of the beholder.
Until the courts or the Legislature clarify the relationship between Oregon's medical marijuana and disability laws, employers should tread carefully when dealing with employees who are using marijuana to treat disabling conditions.
Strategies for Employers
What we do know about medical marijuana is that it is not prescribed. This means that no doctor monitors the use of marijuana, including the frequency, duration and potency of the drug. With this in mind an employer might consider the following prophylactic measures:
Adopt a zero-tolerance policy for drugs and alcohol. Be sure your drug and alcohol policy includes language that the presence of any controlled substance in an employee's body, as determined by a positive drug screen test, is a violation of company policy, subject to proof that use of a controlled drug, including marijuana, is medically authorized.
Identify when employees will be subject to drug testing, such as testing for pre-employment, reasonable suspicion, any workplace injury that causes property damage or personal injury that results in time loss, and/or at random.
If an employee's drug test is positive and the reason can be verified by a current medical marijuana card, then require that the employee obtain a medical certification from his or her treating doctor releasing the employee to work while using medical marijuana. This policy provision must also include a similar requirement for employees on prescription drugs that may impair their ability to perform the requirements of the job. One way to keep the policy even-handed is to mandate a medical certification for any employee using a Schedule I or II drug as defined under the Controlled Substances Act.
Provide the treating doctor with a copy of the employee's job description so the doctor can be appropriately informed of the job requirements before releasing the employee to work while using medical marijuana (or any other Schedule I or II drug). If the employee is working in a safety-sensitive job, you should label the job as being "safety sensitive."
Request the treating doctor to certify any medical restrictions, if the doctor deems it appropriate to release the employee to work while using marijuana. This should include whether a transfer to a non-safety-sensitive position is medically recommended.
Require the employee to update the medical certification periodically. This cannot be more frequent than every 30 days.
State in your policy that any abuse of medically authorized or prescribed drugs is a violation of the company's drug and alcohol policy.
Develop consequences for a positive test for illegal drugs. These may include termination, suspension, participating in an Employee Assistance Program or the use of a Last Chance Agreement.
Respect Employee Privacy
Although you may require an employee to report the use of a drug or marijuana for medical treatment, you may not require that the employee or treating doctor disclose details of the medical condition or the specific name of the drug (except in the case of marijuana, where the employee must provide a current state-issued card).
There is hope for a clear direction in the future. In the meantime, take each situation one at a time. With each case, you may find yourself taking a different direction.
Lynda Hartzell is a partner at Tonkon Torp LLP, where she specializes in employment and labor issues. Hartzell is representing Columbia Forest Products in its petition for review by the Oregon Supreme Court of the first case to test conflicting requirements of Oregon's Medical Marijuana and Disabilities acts.
Oregon -- Among the challenging human resource issues for Oregon employers in the last decade is the question of how to handle employees who are legally using marijuana for disabling medical conditions such as cancer, glaucoma, AIDS or chronic pain.
If an individual qualifies for a medical marijuana card under Oregon's Medical Marijuana Act, the individual likely qualifies for protection under Oregon's disability laws as those laws have currently been interpreted. In the past, employers relied on their drug-free workplace policies and the MMA language that states: "Nothing in the Medical Marijuana Act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace," to keep marijuana out of the workplace.
The trial court in Washburn vs. Columbia Forest Products agreed that employers had the right to enforce drug policies with respect to any use of marijuana.
This year the Oregon Court of Appeals decided otherwise. In construing the above-referenced language from the MMA, the court held that employers may prohibit the use of marijuana at work; but the MMA does not relieve employers from any obligation to accommodate an employee's off-site use of medical marijuana. It further held that Oregon's disability laws require employers to evaluate whether they can reasonably accommodate an employee's use of medical marijuana -- regardless of any drug-free workplace policy.
This situation begs the question of how far an employer must go to accommodate a disability when an employee's choice of treatment is medical marijuana.
In the meantime, Columbia Forest Products has filed a petition for review with the Oregon Supreme Court. The Oregon Legislature is also considering an amendment to the disability laws that would clarify an employer's obligations to employ medical marijuana users. Until a legislative or judicial resolution is made, employers must tread carefully with an employee who presents a valid medical marijuana card.
Must employers accommodate medical marijuana use?
The answer to this question is, maybe. The Court of Appeals stated that its ruling is not a mandate to accommodate all medical marijuana users in the workplace. As with any disability, an employer must explore whether a reasonable accommodation could allow the employee to continue to work while using medical marijuana. This means that when an employee tests positive for the use of marijuana and is able to produce a valid medical marijuana card, the employer must initiate an accommodation dialogue before any termination decision can be made. The same would be true when an employee makes a voluntary disclosure of a medical marijuana card.
Like any disability accommodation situation, the factors that weigh in favor of or against a medical marijuana accommodation are not clear, leaving the employer in a risky situation. The standard is whether the accommodation is "reasonable," and whether something is reasonable is usually in the eye of the beholder.
Until the courts or the Legislature clarify the relationship between Oregon's medical marijuana and disability laws, employers should tread carefully when dealing with employees who are using marijuana to treat disabling conditions.
Strategies for Employers
What we do know about medical marijuana is that it is not prescribed. This means that no doctor monitors the use of marijuana, including the frequency, duration and potency of the drug. With this in mind an employer might consider the following prophylactic measures:
Adopt a zero-tolerance policy for drugs and alcohol. Be sure your drug and alcohol policy includes language that the presence of any controlled substance in an employee's body, as determined by a positive drug screen test, is a violation of company policy, subject to proof that use of a controlled drug, including marijuana, is medically authorized.
Identify when employees will be subject to drug testing, such as testing for pre-employment, reasonable suspicion, any workplace injury that causes property damage or personal injury that results in time loss, and/or at random.
If an employee's drug test is positive and the reason can be verified by a current medical marijuana card, then require that the employee obtain a medical certification from his or her treating doctor releasing the employee to work while using medical marijuana. This policy provision must also include a similar requirement for employees on prescription drugs that may impair their ability to perform the requirements of the job. One way to keep the policy even-handed is to mandate a medical certification for any employee using a Schedule I or II drug as defined under the Controlled Substances Act.
Provide the treating doctor with a copy of the employee's job description so the doctor can be appropriately informed of the job requirements before releasing the employee to work while using medical marijuana (or any other Schedule I or II drug). If the employee is working in a safety-sensitive job, you should label the job as being "safety sensitive."
Request the treating doctor to certify any medical restrictions, if the doctor deems it appropriate to release the employee to work while using marijuana. This should include whether a transfer to a non-safety-sensitive position is medically recommended.
Require the employee to update the medical certification periodically. This cannot be more frequent than every 30 days.
State in your policy that any abuse of medically authorized or prescribed drugs is a violation of the company's drug and alcohol policy.
Develop consequences for a positive test for illegal drugs. These may include termination, suspension, participating in an Employee Assistance Program or the use of a Last Chance Agreement.
Respect Employee Privacy
Although you may require an employee to report the use of a drug or marijuana for medical treatment, you may not require that the employee or treating doctor disclose details of the medical condition or the specific name of the drug (except in the case of marijuana, where the employee must provide a current state-issued card).
There is hope for a clear direction in the future. In the meantime, take each situation one at a time. With each case, you may find yourself taking a different direction.
Lynda Hartzell is a partner at Tonkon Torp LLP, where she specializes in employment and labor issues. Hartzell is representing Columbia Forest Products in its petition for review by the Oregon Supreme Court of the first case to test conflicting requirements of Oregon's Medical Marijuana and Disabilities acts.
