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.

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Federal supremacy in laws is limited to laws which are within the mandate of the Constitution, which is very specific about what powers are granted to the federal government and which are reserved for the states and individuals.

When Congress wanted to pass alcohol prohibition they had to first pass a constitutional amendment because the constitution didn't grant that power to the federal government. When the issue of prohibiting marijuana came up they decided to make an end run around the Constitution by making it a tax issue: you couldn't deal in marijuana unless you paid an outrageously high tax, you couldn't get the tax stamp unless you had the marijuana in hand, and it was illegal to have the marijuana in hand unless you already had the tax stamp. Catch-22.

This was challenged in 1970 and the Supreme Court ruled that the law was unconstitutional because it violated the Fifth Amendment: in order to satisfy the law you had to incriminate yourself. Congress immediately passed the Controlled Substances Act, which attempted to prohibit drugs based on the Commerce Clause of the Constitution which allows the federal government to regulate interstate commerce.

This was challenged in 2006 by two Californian medical marijuana patients who made the argument that since their medicine was grown in California, never moved out of California, and wasn't bought or sold, there was no interstate commerce (or any commerce, for that matter) and didn't fall under the purview of the federal government. The US Supreme Court shot it down on the specious argument that their homegrown marijuana somehow (magically?) affected interstate commerce in marijuana and was, therefore, something over which the federal government should have control.

Federal supremacy turns on whether or not the law involved is a part the limited power granted to the federal government under the Constitution. The issue is not whether federal law trumps state law: it does. The issue is whether or not the Constitution grants power to the Congress to make laws in the area of drug prohibition under all circumstances. If the Supreme Court had ruled in favor of the two Californians it would have brought into question a whole body of federal law rooted in the Commerce Clause. It's not surprising that the Supreme Court would refuse to open up that can of worms.

There has been much debate in the media about the possible medical use of marijuana. Under U.S. law since 1970, marijuana has been a Schedule I controlled substance. This means that the drug, at least in its smoked form, has no commonly accepted medical use.

In considering possible medical uses of marijuana, it is important to distinguish between whole marijuana and pure THC or other specific chemicals derived from cannabis. Whole marijuana contains hundreds of chemicals, some of which are clearly harmful to health.

THC, manufactured into a pill that is taken by mouth, not smoked, can be used for treating the nausea and vomiting that go along with certain cancer treatments and is available by prescription. Another chemical related to THC (nabilone) has also been approved by the FDA for treating cancer patients who suffer nausea. The oral THC is also used to help AIDS patients eat more to keep up their weight.

Scientists are studying whether marijuana, THC, and related chemicals in marijuana (cannabinoids) may have other medical uses. According to scientists, more research needs to be done on marijuana's side effects and potential benefits before it can be recommended for medical use. However, because of the adverse effects of smoking marijuana, research on other cannabinoids appears more promising for the development of new medications.