Ryan Alexander-Tanner

I get randomly drug tested at work. Now that weed is legal in Oregon, can I start smoking again?

IF YOU TEST POSITIVE for THC, you could still get fired. And if you sued, you would likely lose. This would be true even if you had an Oregon Medical Marijuana Program card and a debilitating medical condition, and even if you were never intoxicated at work. Although I am not an employment attorney, I feel confident in telling you these discouraging things.

Marijuana is still a controlled federal substance. Thus, even in states where medical or recreational weed is legal, employers are free to perform drug tests on their hapless employees. Employers are also free to fire these employees for use after hours, stellar performers included. Recent court cases in Oregon, Washington, California, Colorado, and elsewhere confirm this. Let's briskly hike through two of them.

This summer in Colorado, the state Supreme Court ruled in favor of Dish Network, which had fired an employee for a positive THC test. The employee is a quadriplegic who used medical marijuana in accordance with state law, to treat painful spasms he had suffered since being paralyzed in a car accident. Dish Network did not dispute that he performed his crummy-sounding job well, answering calls from cable-service customers. But, the court held that Dish Network had acted within its prerogative under Colorado's Lawful Activities Statute.

Closer to home, we have a case called Emerald Steel v. Oregon Bureau of Labor and Industries (BOLI). This was a state Supreme Court case from about five years back and the facts are also pretty sad. Emerald Steel had hired a disabled veteran with a medical marijuana card, which he used to treat anxiety, panic attacks, nausea, vomiting, and severe stomach cramps that prevented him from eating. The employee never used marijuana at work, but he used it daily. For this sole reason he was fired. The court ultimately held that our state disability law must be construed consistently with the federal Americans with Disabilities Act, which does not protect persons using marijuana.

Oregon may address these issues someday in the legislature, as New York did last year with its Compassionate Care Act. That law protects employees who use pot for medical reasons outside of work hours. However, the law still fails to protect non-medical users, so this only helps a select group of people. I think you are looking for something that protects recreational users, as well.

Some employers, like the federal government, have little or no choice about how to treat their employees who use cannabis, but most employers, like Dish Network, freely choose to drug test. From a purely economic standpoint, this seems like a bad idea, as studies tend to show that drug tests are expensive, inaccurate, and drive away good workers (and, in the case of Dish Network, probably customers too).

Today, unfortunately, it seems a positive test could still get you fired by your employer here in Oregon. Sorry.

Send your cannabis legal questions to vince@harrismoure.com.