Oregon Medical Marijuana Patient Wins County Job Back

In an important ruling, an arbitrator restored the employment of a cancer survivor who lost his job as a senior programmer for Lane County, Oregon.

The Register-Guard reports that Michael Hirsch will also receive $21,550 in wages lost in the six months since he was wrongfully terminated. The article states:

Arbitrator Jeffrey Jacobs based his ruling on the fact that the county provided no evidence Hirsch had used marijuana at work or that his off-duty use hurt his job performance. Hirsch, hired by the county in early 2015, had received “a number of very positive messages and reviews” from supervisors, Jacobs wrote.

Under the union contract governing Hirsch’s position, “disciplinary action may be taken for activities that take place outside of county premises on off-duty time only when the employee’s ability and effectiveness to perform his/her job is impaired.”

Also, the county’s policy of having a drug-free workplace contains an exception if a substance is taken under the supervision of a licensed health care professional and “does not present a safety hazard or otherwise adversely impact an employee’s performance.”

Moreover, Jacobs found that, even if Hirsch’s actions had been deemed a violation of county policy, his firing on his first offense “is far and away too harsh a punishment.”

Hirsch’s situation highlights an ongoing conflict between the legal rights of consumers and the ubiquitous, yet out-dated, «drug-free» workplace policies.

Wrongful termination cases involving patients have seen mixed results in different state courts. A 2015 suit in Colorado brought by Brandon Coats against Dish Network was an example of previous rulings.

In Colorado, Brandon Coats, a quadriplegic who legally uses medical cannabis, was fired from the Dish Network call center because they also maintain a zero-tolerance, drug-free workplace policy. Ina 2015 suit, the Colorado Supreme Court ruled 6-0 that Coats’ firing was perfectly legal.

Some lawmakers recognized the vulnerability and have tried to try to offer protections within recently passed medical marijuana bills.

Pennsylvania’s Act 16 was signed into law in April and contains a provision on the topic:

b) Employment.–

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

The language is a good attempt, but compared to other employment non-discrimination clauses this one is far from airtight. Two thirds of the section is a built-in legal loophole; a favor to business and industry groups.

That’s why the Hirsch ruling in Oregon is so important. This is a critical transition period when the rights of medical patients and regular cannabis consumers in the workplace need to be clearly outlined and then defended.

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