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Bill putting marijuana on par with tobacco raises employer concerns

Graphic for Senate Bill 301Senate Bill 301 would make it illegal for an employer to tell workers that they can’t use legal substances on their own time. The bill doesn’t specifically mention marijuana, but testimony Feb. 21 showed it was all about marijuana.

More than two dozen business associations have registered opposition to the bill. Opponents questioned the bill’s legality as well as raising other concerns Tuesday morning before the House Judiciary Committee.

“Safety, safety, safety,” said Lori Sattenspiel, OSBA interim director of Legislative Services. She said it was of paramount importance that all workers be fit to work and schools needed a way to ensure that.

SB 301 would modify a law that protects workers’ use of tobacco products to include the use of all substances that are legal in Oregon. It provides employers exceptions for “bona fide occupational qualifications,” impaired performance and collective bargaining agreements.

It is not clear what the “bona fide occupational qualifications” would be, and there are no court-recognized methods of testing marijuana impairment. Because THC, the active ingredient in marijuana, remains in the body for months, a positive test does not necessarily mean the person is impaired.

The Oregon State Chamber of Commerce was among several opponents to cite the 2010 case Emerald Steel Fabricators v. Bureau of Labor and Industries. The Oregon Supreme Court ruled that employers do not have to accommodate the use of federally defined illegal drugs.

Rob Bovett, legal counsel for the Association of Oregon Counties, said SB 301 directly conflicts with federal law on controlled substances and would likely be struck down. He also raised the specter of costly litigation and insurance costs for counties and districts.

“Senate Bill 301 is clearly pre-empted and unconstitutional by ‘Emerald Steel,’” Bovett said.

Beth Creighton, founder of the Oregon affiliate of the National Employment Lawyers Association, disagreed, saying the “Emerald” case doesn’t apply because that case was about use of marijuana in the workplace during working hours.

She said that without this legal change, users of alcohol or legal medications would face the same dangers as marijuana users. Because Oregon is an “at will” employment state, an employer can fire a worker on Monday morning for having a beer Friday night or taking a painkiller at night that wears off by morning even though there is no business reason for that action. According to Creighton, alcohol, marijuana and legal medications should enjoy the same protections as tobacco use does now.

“Senate Bill 301 would protect employees from those random, arbitrary non-worker-related types of terminations or discriminations,” she testified.

Several business and schools groups, including OSBA, the Oregon Association of Hospitals and Health Systems and Associated General Contractors – Oregon Columbia Chapter, submitted that the bill would prevent compliance with the federal Drug-free Workplace Act, which would endanger federal grants and contracts.

Marijuana users presented the law change as an issue of fairness. If usage doesn’t interfere with “bona fide occupational qualifications” or break Oregon law, then what people enjoy on their own time is their own business, proponents said.

Several people also testified about how medical marijuana, a legal treatment in Oregon, had cost them jobs after positive drug tests.

- Jake Arnold, OSBA
jarnold@osba.org