SALEM — You can buy it, sell it, grow it, smoke it, eat it, rub it on as a cream. Storefronts and billboards advertise it, doctors prescribe it, the state taxes and regulates it, and business groups promote it.
But if your employer finds out you’ve used it — marijuana — you can be fired.
Two bills before the Legislature are trying to change the situation. They are part of a broader effort by some lawmakers to normalize the use of legal marijuana by adults.
A major problem is that the bills would create state laws that conflict with federal law, which treats marijuana as a dangerous, illicit drug. Oregonians who are unclear about the legal clash could find themselves and their livelihoods caught in the middle.
“Folks who are using recreational or medical marijuana in their off time would be treated like someone who has a beer after work,” said Rep. Chris Gorsek, D-Troutdale, author of HB 2655. “If you come to work the next day, and you are not impaired, testing should not be an excuse to fire someone.”
But even if a bill were to win an uphill battle for approval, it would likely just set up a clash with federal law — a fight states have lost in the past.
Marijuana prohibitions have fallen by the wayside in Oregon. Medical marijuana became legal in 1998. Voters approved recreational marijuana use in 2014.
Last year, Oregonians consumed 166,000 pounds of legal cannabis. The Oregon Health Authority reported in 2016 that 55 percent of adult Oregonians say they have used marijuana, while 16 percent said they have used it in the past 30 days.
Some lawmakers are working to expand what is legally acceptable in Oregon. There are at least 20 pending bills dealing with changing laws and regulation dealing with marijuana. They include legislation to allow for marijuana to be sold at special events, allow limited home delivery, streamline regulation, expand taxation, and attempt to find a way to export Oregon’s over-bountiful harvest of weed to other states where marijuana is legal.
Under the Controlled Substances Act, the U.S. Drug Enforcement Administration puts marijuana on the highest restrictive list, Schedule I: “drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.” Marijuana shares the list with heroin, LSD, ecstasy, quaaludes and peyote.
Nowhere is the rift more pronounced than on workplace issues.
Employers point out that knowingly allowing workers who test positive for marijuana to stay on the job would violate the 1988 U.S. Drug Free Workplace Act. The federal government makes adherence to the law a condition of receiving federal contracts grants and other kinds of aid.
When state and federal laws clash, courts have ruled the federal prohibition wins. Such was the case in Oregon, where a 2010 case, Emerald Steel vs Bureau of Labor and Industries upheld the employer’s right to fire employees who tested positive for marijuana.
“As a matter of law, it’s settled,” said Saul Hubbard, bureau spokesman.
That reality is especially problematic for marijuana users. While levels of alcohol and many drugs fall off rapidly after consumed, cannabis is different. Marijuana’s psychoactive effects may only last for minutes or hours, but its presence in the body can be detected for up to a month.
“At present, if an employee is forced to take a drug test at work, he or she can be fired for having cannabis in their system even if they ingested it weeks ago and are stone cold sober at work,” said Beth Creighton, president of the Oregon affiliate of the Nation Employment Lawyers Association. She made the comments in testimony at the Wednesday hearing on HB 2655 held by the House Business and Labor Committee.
The legislation is backed by the American Civil Liberties Union, National Organization for the Repeal of Marijuana Laws, Oregon Retailers of Cannabis Association and Compassionate Oregon, an Oregon non-profit organization advocating for medical marijuana patients.
Supporters of the bills say that without a test that measures inebriation, the use of urinalysis is inexact and unfair. There is no widely accepted device to measure marijuana intoxication that is similar to a Breathalyzer, which can measure the current level of alcohol in the blood.
“Cannabis consumers have been plagued forever — they have been able to be fired for something that has never really been able to be tested for accurately by urinalysis,” said Sarah Duff, outreach director for the Oregon branch of NORML. “Urinalysis can show a drug test is positive if you have used within the last four weeks. There is little evidence to show that it ever is keeping someone impaired that long.”
This year’s legislative attempts to negate the use tests for marijuana is giving nightmares to some businesses in the state.
“You guys are scaring the bejesus out of all my clients,” lobbyist Darryl Fuller told the Senate Judiciary Committee about SB 379 on Feb. 7. Fuller is a lobbyist for auto and construction groups.
Opposition to the two bills includes the Association of Oregon Counties, Oregon Trucking Associations, Oregon Association of Hospitals and Health Systems, National Electrical Contractors and several other business and trade groups.
Opponents argue the bills would create an unsafe workplace and conflict with federal law. The federal restrictions affect school districts, universities, contractors and a host of others.
Employers who oppose the legislation say abandoning urinalysis would leave managers left to guess if and when a worker has used marijuana.
“Without a regular and enforceable standard, an impaired employee puts the employer’s company at risk should an employee’s impairment result in negligence which harms another employee, a customer, or a member of the community,” said Lou Ogden, executive director of Unified Business Oregon, during the House hearing.
Rob Bovett, legal counsel for the Association of Oregon Counties, testified in the House hearing that City County Insurance Services had estimated local governments could face a bill of up to $1.6 million in litigation if the bills are passed and another $1.2 million per year after that.
“There is no specific exception in the bill for safety sensitive jobs, such as first responders, teachers, medical providers, and utility workers,” Lovett said. “Because ‘impairment’ is not an exact science, jobs that provide the crucial infrastructure for our community should be specifically excepted from the bill.”
Supporters of the legislation have tried to accommodate critics by including language that would exempt unspecified jobs where refraining from marijuana use is “a bona fide occupational qualification” or included in a collective bargaining agreement.
Gorsek, author of HB 2655, said he is open to additional amendments. He said the bill will help prepare Oregon for a day when federal prohibitions against marijuana are lifted.
“We would have set up a foundation for going forward,” Gorsek said.
Whatever the outcome of this year’s legislation, it isn’t an issue that is going to go away.
Anthony Taylor, is co-founder of Compassionate Oregon and vice-chair of the Oregon Cannabis Commission. Taylor appeared before the House panel, noting that he wasn’t speaking in his role as a commissioner.
Taylor said that as marijuana use rises, positive drug tests are going to rise, making it harder for employers to find workers in a tight job market. For workers, a positive test can ruin careers and lives. He said one approach could be for companies to stop pre-employment testing and random testing. Instead, they could focus on testing for cause — when a company truly believes a worker is intoxicated, no matter the substance.
Taylor said marijuana use is a fact of life in Oregon and much of the country.
“Cannabis has been in the workplace as long as I have been,” Taylor said. “I have seen it used while in the military after hours by air traffic controllers and I have seen it in the workplace in every job I have held since 1977.”
— Reporter: 541-640-2750, email@example.com