Working Spliffs

[December 10th, 2008]

A corporate lawyer is reigniting a four-year legislative battle to stomp out thousands of Oregon medical marijuana users in the workplace. And cannabis advocates fear this time they’ll finally lose the fight.

Dan Harmon, vice chairman of Associated Oregon Industries, has been touring the state telling business leaders and policy makers he’ll push the 2009 Legislature to allow employers to fire medical marijuana users—even if they toke only at home.

Harmon says he’s also pushing to require employer notification if a worker has a medical marijuana card.Currently, 20,547 Oregonians have them.

“Basically, it would allow them to hang up the ‘No Medical Marijuana Patients Need Apply’ sign,” says Russ Belville, associate director of the Oregon chapter of the National Organization for the Reform of Marijuana Laws. “They want your boss to become your doctor.”

Harmon, general counsel for Portland-based building giant Hoffman Construction, echoes cops who say the law is widely abused. Harmon also believes medical marijuana poses a danger to workplace safety.

“We have a permissiveness around substance abuse,” Harmon says. “There’s an agenda out there to legalize marijuana, and this can’t be the Trojan horse.”

Oregon law now says employers need not accommodate patients’ marijuana use in the workplace, but it says nothing about home use.

Harmon wants to bring back a bill that’s twice failed to pass the Legislature. That measure would rewrite the law to say employers need not accommodate medical marijuana users “regardless of where the use occurs.” Harmon says the change would leave it up to bosses to decide if a worker’s marijuana use poses a threat, whether they use it on the job or off.

After failing in the 2005 and 2007 legislative sessions, a compromise bill was slated for the 2008 special session. Rep. Peter Buckley (D-Ashland), who authored the compromise, says House leaders spiked it because a Feb. 4 editorial in The Oregonian opposed it, calling instead for employers to be allowed to fire users.

This time around, pot advocates fear the bill will finally pass because one of its early supporters, Rep. Dave Hunt (D-Gladstone), has been elevated to House speaker for 2009. Hunt was in the minority of eight Democrats in 2005 who voted for the bill, which was carried by arch-conservative Rep. Linda Flores (R-Clackamas).

In the past two years, campaign finance records show Hunt has received $16,000 from Associated Oregon Industries. But Hunt’s spokesman, Geoff Sugerman, says that’s irrelevant to a compromise that now-Speaker Hunt will be seeking.

“Clearly our goal is to find legislation that satisfies both the business community and medical marijuana cardholders,” Sugerman says. “We are confident that we’ll pass the bill in both chambers this session.”

Proponents of the change frame the issue in terms of workplace safety. But marijuana advocates point to numerous state statistics that show workplace accidents and deaths have been decreasing since the medical-marijuana law passed. And because THC can linger in fat cells for more than 30 days, merely testing positive can’t confirm whether a worker is under the influence when tested.

As a compromise measure for workplace safety, pot advocates are proposing impairment tests for jobs such as drivers and crane operators, where safety is a significant issue. Ultimately, they’d like to see a patient’s bill of rights that guarantees marijuana users won’t be fired for taking their medicine.

The state Bureau of Labor and Industries says patients’ jobs are protected only if they use marijuana to treat a qualifying disability under the Americans with Disabilities Act. If not, they can be fired merely for testing positive on a drug test, even if it’s for prescribed marijuana. But the new proposal would both let employers know who has cards and end ambiguity around home use.

Several fired workers have challenged their employers in court. Leland Berger, lawyer for the Voter Power marijuana reform group, says so far there has been no conclusive case in Oregon that would protect employee rights.