Senate Bill465 would allow employers to enforce drug testing

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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