A bill meant to prevent employers from using off-the-clock marijuana use as a cause to fire or refuse to hire someone is on the growing list of proposed legislation awaiting lawmakers in Salem.
Backers of Senate Bill 301 say it would override state Supreme Court decisions that say employers need not accommodate workers’ off-the-job use of marijuana, legal for all adults since July 2015. Others give slim odds of SB 301 passing when the Legislature convenes Feb. 1.
The bill, introduced this week, barely fills one page. It is basically a copy of older legislation meant to protect tobacco users from being fired or denied employment on account of their habit.
“The beauty of this particular (proposed) statute is that it really builds on a little-used statute brought about by the tobacco industry,” said Beth Creighton, an attorney with Rose & Creighton, a Portland firm. Creighton specializes in representing employees.
“It’s definitely an individual rights issue,” she said. “The voters in the state of Oregon have decided that marijuana is legal, so you shouldn’t be fired for something that’s legal.”
The bill would prohibit employers from requiring employees or prospective employees to “refrain from using a substance that is lawful to use under the laws of this state during nonworking hours.”
The proposed bill leaves room for employers to continue drug testing employees or applicants as part of a “bona fide occupational qualification” or to prevent on-the-job impairment.
In employment terms, Oregon is an at-will state, meaning employers may let workers go for nearly any reason or no reason at all, Creighton said. Putting exemptions into law affords some worker protections, such as those for whistleblowers, she said.
“Beth contacted me a few months back and said it was an unlawful employment practice for employers to either refuse to hire someone or fire them for tobacco smoking. What would you think about expanding that for substances that are legal for adults to consume?” said Leland Berger, a Portland attorney who counsels marijuana businesses. “I told her I thought it was a brilliant idea.”
Creighton proposed the bill to the Legislature’s Joint Interim Committee on Marijuana Legalization, co-chaired by state Sen. Ginny Burdick, D-Portland, and state Rep. Ann Lininger, D-Lake Oswego, which introduced it.
Other employment lawyers said the bill has little chance of passing. It’s too simply crafted to achieve its goal, and besides, a federal law that still regards marijuana as an illicit drug trumps state law that legalizes it, they said.
“My experience, so far, is that people are not giving that (bill) much energy,” said attorney Amanda Gamblin, of Schwabe, Williamson & Wyatt, in Portland.
The most recent significant impact on employee drug testing, she said, comes from an August 2016 rule by the federal Occupational Health and Safety Administration. The rule aims to improve the collection of data on workplace injuries and accidents; it does not directly address drug testing. In comments accompanying the rule, the agency explains that a blanket, post-injury drug testing policy may silence workers who would otherwise report a workplace injury or accident, particularly if the test method indicates drug use but not impairment.
Critics of marijuana drug testing say tests show only past use, not impairment. Proponents of drug testing say a workplace accident in itself may suggest some level of impairment, Gamblin said.
Gamblin said that behind the OSHA rule may be an attempt to accommodate states in which marijuana is legal to one extent or another. Recreational marijuana is legal in the District of Columbia and seven states other than Oregon. Medical marijuana is approved in 28 states.
“I don’t think OSHA would admit it, but the timing is interesting,” Gamblin said.
Attorney Paula Barron, an employment and labor law specialist, called the OSHA rule a “red flag.”
“That one was a little bit of surprise,” she said. The drug testing statement “wasn’t even in the regulation — it was in a preamble to the regulation.”
Further complicating the picture, Barron said, an employer can use impairment to defend against a worker’s compensation claim. Plus, an Oregon Supreme Court decision in April 2010, Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, held that employers need not accommodate employees’ use of a drug deemed illegal by the federal government.
With that in mind, SB 301 is a pointless exercise, Gamblin said. Barron agreed. Federal law “occupies the field,” she said.
“It would take an awful lot for a state government to overcome that,” Barron said, “if at all.”
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