Conflicting state and federal laws have made it increasingly difficult for employers to spell out and enforce workplace alcohol and drug policies.
"We have this great confusion in the law because of the differing federal and state laws on the medical marijuana issue," attorney Paula Barran told a gathering of The Chamber of Medford/Jackson County Monday afternoon at Rogue Valley Country Club.
"The law is, frankly, the biggest mess that I've ever seen," Barran said. "Employers like you don't know what to do or how to handle drug issues, and we have a lot of issues."
Forced to deal with increasing drug use in the work force, employers frequently don't know which steps to take, she said.
"We live in a state where a lot of employers have this sense that 'I really shouldn't be telling people how to live their lives,' " Barran said.
She countered that notion with elements of federal law.
Occupational Safety and Health Administration standards include a general duty clause requiring employers to provide a safe workplace.
"That should be the first motivator," Barran said, adding employers could run into legal trouble if they hired or kept an employee who was unfit for duty and caused injury to others.
She said employers should be clear with workers what the rules are, how they are enforced and what the consequences are for violating them.
Barran said drug use is problematic in Oregon, and the legalization of medical marijuana has created additional strains.
Adult marijuana use is 50 percent higher than the national average, Oregon ranked No. 7 in per-capita abuse of methamphetamine and, according to the state Human Services Department, 302,000 people — 10 percent of the population — need treatment.
Barran said medical marijuana was presented to voters as a palliative measure for critically ill patients but that's rarely the profile of the typical medical marijuana card holder.
"The morning after was the real problem for us," she said. "Because all of the sudden, it turned out that medical marijuana was not being doled out to people with serious debilitating diseases or in the last stages of some fatal illnesses."
Of the nearly 25,000 medical marijuana card issued in Oregon, just more than 21,000 cards were for "severe pain," while slightly more than 1,000 were for cancer patients, Barran said. In the past 12 months, she noted, there have been more than 13,000 new applicants and almost 12,000 applications for renewal; 851 applications were denied.
The growing number of medical marijuana cards has given employers pause and made Oregon an attractive place for drug users.
"Those of us who live in this state and love this state have to be saddened by the thought that we may become a magnet for people who are not coming to contribute to the life we have, but to possibly engage in activities that are destructive of that life."
She said 77 percent of Oregon employers report substance abuse is a concern, with more than 5 percent of people tested for illegal drug use failing. In parts of Oregon, pre-hiring drug test failure is 60 percent, which is 50 percent higher than the national average.
"If you look at people in the unemployment ranks," she said, "about a third of them are really functionally unemployable because they have some sort of serious drug abuse problem."
A pending case before the state Supreme Court involving Emerald Steel will unravel some of the issues, she said.
In that case, the state Court of Appeals upheld a ruling by the state Bureau of Labor and Industries that the steel fabrication company in Eugene violated state laws barring discrimination against the disabled by discharging an employee who used medical marijuana. A key issue was the fact the employee never used marijuana in the workplace.
The case is on appeal to the Supreme Court and Barran said its ruling could affect many employers in the state.
"You need to pay attention to that one," she said.
By Greg Stiles
November 14, 2009
Ashland Daily Tidings
Employers cautious under Medical marijuana law