Bill prohibits employers from firing employees who use marijuana

Paris Achen/Capital Bureau Heather Kell of Portland sits in the Senate Judiciary Committee meeting at the Capitol in Salem Tuesday after testimony on a bill to prohibit employers from firing employees who use marijuana.

SALEM — Most Oregon employers would lose the right to fire employees or deny employment to a candidate who uses marijuana during non-work hours, under a bill proposed by lawmakers on the legislative marijuana regulation committee.

The controversial legislation makes exceptions for certain industries such as truck drivers, federal contractors and jobs covered by collective bargaining agreements.

As a legal substance in the state, marijuana should be treated the same as tobacco, proponents told lawmakers during a public hearing in the Senate Judiciary Committee Tuesday.

“The goal with Senate Bill 301 is to protect other substances that are legal under Oregon law from being a cause of termination or not hiring people for a particular job,” said Beth Creighton, a Portland employment attorney, who has represented clients who were fired for their marijuana use. “Currently, tobacco is protected, so if you use tobacco offsite, employers are not permited to fire you because of that. With the onset of legalized marijuana, marijuana should not be treated any differently.”

The bill still allows employers to fire employees who come to work impaired, she noted.

“If you have somebody falling down drunk in the workplace, you don’t have to keep them on duty. You don’t have to keep them as an employee,” Creighton said. “You can still be prohibited from coming to the work impaired on any kind of substance.”

Opponents argued such a law would violate federal law on controlled substances and would be defeated in court.

Employers, including cities and counties, argued the bill also could put employers at risk of litigation.

“I am not generally averse to symbolic laws that can’t be enforced. Sometimes you want to make a policy statement even if it’s unenforceable,” said Rob Bovett, legal counsel for the Association of Oregon Counties.

However, the bill “would cost our members … significant dollars to litigate and defend, and ultimately, it is my strong opinion, would all be preempted (by federal law),” Bovett said. “In this case, we don’t want to see a symbolic law put on the books that would not be enforceable but would cost taxpayers money.”

Opponents said the bill also needs to allow businesses that involve public safety, including airline pilots, railroad engineers and schoolteachers, to prohibit employees from using marijuana on or off work.

Portland resident Heather Kell, who has a bachelor’s degree in finance, said she lost a job offer after she disclosed that she was a medical marijuana patient and tested positive for THC, the psychotic element of marijuana.

“I feel that even though it’s legal in the state of Oregon, it’s awkward that I have to share private medical information,” Kell told lawmakers during the hearing. “I could no longer work with the recruiting agency, and I did not know I would be precluded from all future employment through the recruiting agency.”

During the five years since she started using medical marijuana, Kell said she had never been reprimanded or accused of being impaired due to her medical marijuana use.

One way to protect medical marijuana users, without putting the state in conflict with federal law, could be to change Oregon’s Disabilities Act to prohibit discrimination against medical marijuana users who use the substance when they’re not at work, said Jim Westwood, senior counsel at Stoel Rives, who spoke on behalf of Oregon business.

Sen. Floyd Prozanski, D-Eugene, chairman of the Senate Judiciary Committee, said he plans to meet with Westwood, other opponents and proponents to discuss that potential option.

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