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Legal Marijuana Use Raises Employer Questions

News Flash: New Jersey legalized the sale and use of medical marijuana as of July 1, becoming the 14th state to allow the use of pot for medical purposes.

News Flash: Effective July 23, medical marijuana is legal in the District of Columbia.

News Flash: The Oregon Supreme Court has upheld the right of an employer in Oregon to terminate an employee after discovering the employee was a medical marijuana user.

What’s going on here?

What’s going on is that two forces – a public policy force and an employer policy force – are colliding. And employers are caught in the crossfire.

The public policy force is the passage, in more and more states, of laws making it legal for people to use marijuana for medical purposes.

The employer policy force is the practice of many, if not most, employers of prohibiting the use of illegal drugs by employees.

Since federal law continues to make the use of marijuana illegal, even in states and jurisdictions that legalize medical marijuana use, employers in legal medical marijuana states are caught in a dilemma. And, as more states legally approve the use of medical marijuana, the clash of policies will spread.

Bottom Line for Employers

The crux of this issue is, “Can an employer discriminate against medical marijuana users in states and jurisdictions where the state or local law permits individuals to legally use marijuana for medical purposes?”

For an answer, consider the recent Oregon Supreme Court decision inEmerald Steel Fabricators, Inc. v. Bureau of Labor and Industries. This case involved Anthony Scevers, who worked for Emerald Steel on a temp-to-hire basis. The company told Scevers he would have to pass a drug test if he was eventually hired as an employee.

Shortly after starting work, Scevers told his supervisor he was legally using marijuana, in accordance with Oregon state law, to treat a medical condition. His purpose in revealing this to his supervisor was to find out if his medical marijuana use would affect his chance of becoming an Emerald Steel employee.

There was no evidence that he smoked marijuana on the job and no evidence that his pot smoking adversely affected his job performance. Even so, Emerald Steel acted quickly, telling Scevers he would not be hired as an employee, and also ended his temporary worker status.
Scevers filed a charge of discrimination with the Oregon Bureau of Labor and Industries. He argued that Emerald Steel discriminated against him because of his disability (his medical condition that prompted him to legally smoke marijuana) and that Emerald Steel failed to accommodate him as required by Oregon state law.

The state agency sided with Scevers and, later, the Oregon Court of Appeals agreed with the state agency.

Court Ruled Employer Did Not Have to Accommodate

The Oregon Supreme Court reversed that decision. The court noted that marijuana is still an “illegal drug” under federal law… and under Oregon’s state disability discrimination law, illegal drug users are not protected. As a result, an employer could not be forced to accommodate the use of the illegal drug.

The court’s decision was straight to the point: “Under Oregon’s employment discrimination laws, employers are not required to accommodate an employee’s use of medical marijuana.” The court also concluded that the federal Controlled Substances Act preempts state law.

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