Lack of Protections for Oregon Employees Who Use Medical Marijuana
ue to the enactment of the Oregon Medical Marijuana Act (OMMA) in 1998, Oregon is one 20 states plus the District of Columbia to pass legislation legalizing the use of marijuana for medical purposes. The laws under OMMA, ORS 475.300-ORS 475.346, protect citizens with debilitating medical conditions from criminal liability for the use of small amounts of marijuana as part of a physician recommended pain treatment program. Furthermore, the Oregon Governor Kitzhaber recently signed a bill into law to expand OMMA in order to license and regulate legal medical marijuana dispensaries in the state. Despite Oregon’s historically progressive marijuana policies, little guidance or regulation exists regarding an employer’s medical marijuana use policies.
Confusion in the Workplace for Medical Marijuana Patients
Employers in Oregon are faced with uncertainty on how they may respond under the law when an employee who rightfully uses medical marijuana fails a drug test. On the other hand, employees who are approved to legally use medical marijuana are angry and confused when their employer terminates them following a failed drug test. OMMA provides no guidance on this issue, and only states that the law does not require any employer to accommodate the medical use of marijuana within any workplace. OMMA does not specifically address an employee’s use of medical marijuana outside of the workplace.
Several employees who were fired as a result of failed drug tests filed lawsuits for wrongful termination, claiming such arguments as:
an employer’s ability to terminate the medical marijuana user violates the state’s public policy;
the law itself establishes employment protections for medical marijuana users; and/or
the employer unlawfully discriminated against them based on a disability by failing to accommodate their medical marijuana use.
The Oregon Supreme Court has rejected these arguments in turn, holding the employees were not wrongfully terminated. The Court has cited reasoning such as:
the statute does not create a distinct public policy that may support a wrongful termination claim;
the statute does not establish medical marijuana as a protected class; and
federal law preempts any argument that medical marijuana users are protected from disability discrimination.
A similar plaintiff in Colorado recently argued that his termination was illegal because it was based on his participation in lawful activities outside of the workplace. Colorado courts rejected that argument, as well, claiming that marijuana use is still unlawful under federal law and was therefore not a clear lawful activity.
The Department of Transportation has made clear that employees in safety-sensitive positions, such as truck drivers, must pass every employer drug test regardless of a medical marijuana license. For other employees, their ability to use medical marijuana remains a gray area. If you are an employee licensed to use medical marijuana, you should familiarize yourself with your employer’s specific policies. If you have any questions or concerns regarding medical marijuana use and employment rights, feel free to contact an employment attorney at our office.