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The Oregon Senate recently passed a bill that would directly affect the workplace’s
ability to enforce drug-free workplace programs under the Oregon Medical Marijuana Act (OMMA).
Senate Bill 465 would allow employers to enforce drug testing as part of their drug-free
workplace program and to fire workers who test positive on drug tests for marijuana even
if the substance’s use is for medical reasons.
Under the current Oregon Medical Marijuana Act (OMMA), passed in 1998, residents are
allowed to use marijuana legally for medical purposes. The Act states that Oregonians
“suffering from qualifying debilitating medical conditions for the use of medicinal marijuana”
are protected “without the fear of civil or criminal penalties when their doctors advise
that such use may provide a medical benefit.” It does not, however, require employers to
accommodate employees who use medical marijuana. The Act is administered through the Oregon
Medical Marijuana Program (OMMP) under the state department of health and human services and
requires all those who seek to use marijuana legally to apply through the OMMP for and, once
approved, carry a card certifying documentation that marijuana is needed for a medical condition.
It does not require a worker to disclose that he or she carries the OMMP card.
The issue under the current OMMA for the workplace is that employers who want to enforce a
drug-free workplace program, including drug testing, may be subject to possible challenges
stemming from various disability laws. For instance, if an employee tests positive for marijuana
use as part of a comprehensive drug-free workplace program and the policy is to terminate
employment for those employees who test positive, there may be legal recourse on the part of the
employee as a result of having a medical condition for which medical marijuana is prescribed and
for which the workplace may be required to accommodate. Indeed, this issue was challenged in 2006
by a medical marijuana user after a positive drug test; the Oregon Supreme Court ruled in favor of
the workplace. Shortly thereafter, the process of writing S.B.465 began.
This new bill is very specific as to what the workplace is required to do as far as medical
marijuana use is concerned. It states that an employer is not required to “accommodate the medical
use of marijuana in any workplace regardless of where the use occurs.” It goes further to say that
an employer is not required to “allow an employee…to possess, to consume or to be impaired by the
use of marijuana during working hours; allow any person who is impaired by the use of marijuana to
remain in the workplace; or preclude or restrict an employer from establishing or enforcing a policy
to achieve or maintain a drug-free workplace.”
There are currently 12 states with medical marijuana laws. The repercussions of passing this Oregon
bill on the use of medical marijuana could be significant for drug-free workplace programs if other
states follow suit. Thus far, only users in California and Montana are explicitly protected from being
fired or disciplined for using the drug medically.
Employers implement drug-free workplace programs to protect their businesses from the impact of drug
and alcohol abuse. A comprehensive drug-free workplace program generally includes five components: A
written policy, supervisor training, employee education, employee assistance, and drug testing. More
information about the issue of workplace drug use and how employers and employees can work together to
prevent it is available on the U.S. Department of Labor's Working Partners Web site.
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