IMPORTANT! Medical Marijuana,
Oregon is an at-will employment state!
In my practice, I get asked about medical marijuana and interactions with the workplace. I posted about this earlier but felt like it was necessary to post about it again.
First, it is important to remember that marijuana is still illegal in all 50 states under federal law. Under the Obama administration, US attorneys were instructed to look the other way based upon state laws. That meant note prosecuting medical marijuana dispensaries and later, recreational marijuana dispensaries. That is not necessarily the case anymore.
It is important to understand that Oregon is an at-will employment state. What that means is that absent a contract, a person can be fired for any reason that does not violate the constitution or anti-discrimination statutes.
Again in Oregon, many employers have a zero tolerance policy and will drug test, and if they find evidence of consumption of marijuana, you can legally be terminated. It is also important to remember that marijuana can stay in a person’s system for days and perhaps even weeks.
In Oregon, there are not many cases dealing with this issue. One is Washburne v. Columbia Forest Products, Inc., 340 Or 469 (Or. 2006). This case arises in an important discrimination context. The worker had high blood pressure and was treating it by smoking marijuana. His company fired him for that and he brought a discrimination complaint. He lost at trial, won at the Court of Appeals, but the Court of Appeals decision was reversed by the Supreme Court. The Supreme Court dodged the issue of marijuana and found instead that the worker was not disabled within the meaning of the statute, because his disability was having high blood pressure, which did not affect in major activities of daily living.
There is another case more on point at the Workers’ Compensation Board level called Brooke A. Woodard, 69 Van Natta 266 (2017).
In this case, the claimant was hired as a receptionist for a medical marijuana dispensary. Her employer told her to be at work on April 17, 2017, to attend a business plan orientation meeting, and then the employer invited everyone into the back area of the dispensary where he and one of the other business owners prepared joints for the employees to smoke. Claimant joined the other employees in smoking those substances. When they finished smoking, the employees resumed preparing for the dispensary’s opening and claimant had a panic attack and ran across the parking lot to a retaining wall, climbed the fence, and dropped about 15 feet to the ground, breaking her ankle. She filed a workers’ compensation claim which was denied. Claimant took the matter to hearing and won. Her employer appealed that case to the Workers’ Compensation Board, and the Board found that claimant was entitled to benefits.
In other states, such as Colorado, California, Montana, and Washington, courts have held that while marijuana may be legal in the state, it is not legal under federal law and therefore workers can be fired for using the substance even if they use it off the job and are completely sober when they arrive at work.
The best advice I can give is to make sure you understand what your employer’s policy is with respect to testing positive for marijuana when you show up at work. As a general rule, most employers don’t do randomized drug testing on a regular basis. They do frequently test people after they’ve filed a claim for a work-related injury, and that may be discriminatory depending upon the circumstances of the injury.
Bottom line is that while marijuana may be legal in Oregon until that changes federally, you can put your job at risk for using marijuana.
Author: Christopher Moore
Feb, 9th 2018