In Most Legalization States, Employees Can Still Get Fired for Off-job Use

In Most Legalization States, Employees Can Still Get Fired for Off-job Use

Oregon’s legislature has a busy agenda on cannabis this year. The state is trying to deal with a massive oversupply of legal cannabis, a declining medical marijuana program, and deciding on licensing and regulation of social consumption lounges. Often overlooked in legalization regulations, however, are basic protections and employment rights for users. Over 20 years after Oregon legalized medical marijuana, even patients still don’t have these protections for off-the-job or non-impairing medical use.

Last week, the Oregon Senate and House of Representatives heard arguments for and against proposed legislation that would grant cannabis users employment protections, H.B 2655 and S.B. 379. So far, no vote has been taken to move the bills out of their respective committees, but the proponents for and against the issue are lining up to support or oppose those bills.  

Basically, if these bills become law, if the job isn't for the federal government users cannot be discriminated against — i.e., fired from their job — for THC in their urine on a drug test, with some exceptions. Both bills would declare an emergency, meaning they will be enacted into law immediately after passage. Right now, only summary text is online, but this legislation gets at a larger national issue. Despite the majority of states having medical or adult use cannabis programs that allow some forms of access, only a small handful have laws protecting patients or adults who use cannabis “recreationally.”

At issue is how to determine “impairment” based on cannabis in a blood sample or urinalysis, and the science isn’t settled on that approach. Legislators around the country have been trying to find a scientifically solid way to determine and regulate cannabis impairment by THC content in the blood. In Oregon, big industries are coming out hard against these employment protection bills specifically because they do not have a scientifically valid impairment test. All are arguing that until such testing is a reality, their employees should be prohibited from off-the-job legal use.

The Opposition

Although many advocates and pro-cannabis lobbyists were aware there was an employment protection bill in the House of Representatives, many were surprised to find out there was an identical bill in the Senate, which was heard first. During that hearing there was only one proponent, Casey Houlihan of ORCA, to defend the bill against a host of lobbyists that represent industries that mandate drug testing for safety. Pro-cannabis advocates did testify in larger numbers for the house bill.

The overwhelming majority of opponents are requesting that the legislature outright oppose the bills. One opponent, Rob Bovett of Association of Oregon Counties did offer to work with the legislature to amend the law in a way that exempted certain high-risk industries.

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“I am more than willing to assist in a work group if there is a desire to amend S.B. 379 [and H.B. 2655] in a manner that attempts to comply with constitutional requirements,” Bovett offered.

Most cited the lack of a scientific means of determining impairment by THC levels in the body as a reason to uphold the status quo.

“Many employees within the trucking industry are still in safety-sensitive positions where impairment of any kind could jeopardize the health and safety of themselves, our drivers, or the motoring public. Instead of creating a two-tiered policy for workplace impairment, most trucking companies rely on and enforce a drug-free workplace for all employees. This is necessary because current drug tests are unable to determine whether an employee is impaired at work or merely has marijuana in their system. If passed, SB 379 would place employers in the untenable position of lowering the bar for safety for all employees in order to accommodate the lawful use of marijuana for some,” testified Waylon Buchan of the Oregon Trucking Association.

The Proponents

Proponents of employment protections for cannabis use say medical use should be treated the same as prescription medicines and suggest there are better ways to determine impairment from cannabis use than THC content in the body.

Sarah Duff, a board member of both Oregon NORML and Compassionate Oregon, suggested using mobile applications like DRUID App to determine impairment. These jobs serve as a punch clock for employees who work jobs with a high potential for danger (such as truck driving) and are already in use in Colorado. Employees are not allowed to clock into work without passing an impairment test based on reaction times. Well-known cannabis researcher and physician Dr. Sunil Aggarwal also agrees with this approach.

“A better measure of impairment is something like the DRUID App, a validated application that can be run on a mobile device that can measure one’s reaction time, speed, coordination, balance, and other psychomotor variables, and compare it to an individual’s baseline value,” Aggarwal said.

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Duff testified that she believes the industries opposing these protections with valid safety concerns should be exempted from the law, which she says she interprets the law as doing. She added that after learning about the potential danger of impairment on these jobs she would hope “that they do impairment tests daily to ensure that fatigue does not cause employees or contractors to work in dangerous conditions. Those who support this bill want pilots to be alert and not under the influence of any drug or fatigue, but urinalysis does not provide this assurance.”

“I would like to mention that some industries have used drug tests to avoid paying out workers compensation claims. The OHA website states that 55 percent of Oregonians admit to having used cannabis at some point in their lives. They state that 16 percent of Oregonians currently use cannabis. It seems that some businesses have figured out that they can save money on worker's compensation insurance if they can use a positive drug test for cannabis as an excuse to not pay out the claim,” Duff added. “We need to pull apart these layers of prohibition.”

“Right now, you have a choice between a life-saving medicine and your job, that is a difficult situation,” testified Heather Kell, who added cannabis was a safer alternative to prescription painkillers, especially in light of the opiate epidemic.

It seems at least the House Business and Labor Committee was favorable to this take, with Representative Julie Fahey (D-Eugene) adding that she has replaced opiate painkillers with cannabis for her own back pain and “is happy to still have my own job.”

“The current dynamic is hindering the ability of otherwise qualified people to find and/or keep jobs — increasing Oregonian’s risk of financial insecurity. This is especially true for lower wage employees, further entrenching legal cannabis as a right only for the wealthy and privileged,” testified Jesse Bontecou, who represents the Oregon Retailers of Cannabis Association (ORCA).

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Further testimony in favor of the employment protections was submitted by Beth Creighton representing the Oregon affiliate of the National Employment Lawyers Association (NELA), which is “an organization of attorneys committed to advancing equality and justice in the workplace.” Creighton has represented Oregon employees for over 20 years and says that ever since the state legalization in 2014, she receives at least one call a month from a citizen who was fired for legally consuming cannabis in their off hours.

“Ninety-eight percent of the time I have to tell clients that I am unable to help them because under the current law, an employer can fire an employee for using any substance while off duty, even if it is legal to do so. The only exception is tobacco, which is protected… There is absolutely no business-related reason that an employee who has a beer on Friday night after work should be terminated Monday morning for doing so. Also, it makes little sense to fire employees who take pain medication at night that wears off by morning, but is still in their system. There is no current law preventing employers from doing just that. Allowing employers to terminate employees for something that the voters in this state have decided is perfectly legal infringes upon Oregonians’ fundamental rights to freedom,” Creighton testified.

Can impairment be measured by THC content in human blood or urine samples? Read more in part 2.