March 25, 2009
March 25, 2009
By Associated Oregon Industries,
Oregon Largest Business Lobby
Outnumbered ten to one by medical marijuana advocates in a House Business & Labor Committee hearing this week, representatives of Oregon’s leading business organizations testified in support of HB 2497 and HB 3052. These identical bills, sponsored by Representatives Bruce Hanna and Mike Schaufler, clarify that employers are not required to accommodate medical marijuana in the workplace, regardless of where the use occurs.
Business representatives also raised concerns about HB 2881, sponsored by Representative Peter Buckley, which seeks to require employers to use a Medical Review Officer (MRO) to review any positive marijuana test and give the MRO the decision on whether medical marijuana cardholders no longer pose a safety risk and can return to work.
The Committee also considered HB 3274 which would put the state in charge of growing, distributing and taxing medical marijuana.
Business representatives made the following points:
* JL Wilson, Associated Oregon Industries: Oregon employers continue to have safety and liability concerns due to the confluence of two major events: (1) BOLI’s position forcing employers to accommodate a federally-controlled substance and (2) the explosive growth of Oregon’s medical marijuana program, which now has over 21,000 cardholders, with 90% qualifying for “severe pain” and only 6% qualifying under the original conditions of the Act.
* Paula Barran, Barran Liebman Attorneys: The vast majority of employer advice provided by SAIF relates to confusion over Oregon’s medical marijuana law. Barran urged the committee to look at the risk of losing federal stimulus dollars by requiring employers to accommodate medical marijuana cardholders. Employers must certify they are in compliance with the Drug-free Workplace Act order to qualify for federal contracts and grants.
* Dan Sabatino, Western Partitions: As a large union contractor with up to 1,000 employees, the company spent over five years and $50,000 accommodating a cardholder who was trained in fall protection but who used marijuana at lunch, then fell and shattered his leg. Sabatino said that when an injury happens, it is not the marijuana user that is held liable, it is the employer.
* Anthony Miller, Oregon Self-Insurers Association: Representing over 130 employers, Miller said that OSIA is not seeking to overturn Oregon’s Medical Marijuana Act but legal clarity concerning an employer’s right to maintain a drug-free workplace. One member, a large well-known health care organization, recently experienced frequent mistakes with patient medications by a pharmacy technician with a medical marijuana card.
* Ken Hector, Silverton Hospital: Every aspect of medical care is safety sensitive. Silverton Hospital does not allow employees to work while using drugs or alcohol, including prescriptive narcotic medication in which the strength is known and the dosage specified. With medical marijuana, there are no dosage recommendations and worse, the strength varies from plant to plant. Controls are non-existent.
* Michael Adamski, The Stoller Group: The company places over 18,000 individuals annually in temporary employment – school bus drivers, construction site flaggers, food processors — and is often presented with applicants with medical marijuana cards. Adamski stated that it is a serious system flaw to allow certain employees to have marijuana in their systems, putting the safety of everyone around them in jeopardy. It is also irresponsible to ask employers to essentially disregard their drug-free work policies.
* Duane Grange and Lee Briney, American Society of Safety Engineers: The three ASSE chapters in Oregon, representing 800 occupational safety, health, and environmental professionals, support HB 2497 and 3052. Grange noted the importance of ensuring a workplace is safe for all. Briney noted that HB 2881 would impose an undue financial hardship, particularly on small employers, by requiring use of a MRO for any positive marijuana test. In addition, she stated that most MROs are not qualified to determine whether or not an employee under the influence of any drug would be fit for duty nor would they be willing to make that determination because of the tremendous liability involved.
* Jerry Gjesvold, Serenity Lane: With the growth of Oregon’s medical marijuana program, Gjesvold has assisted more than 30 employers in how to respond when an employee tests positive for marijuana and then presents a medical marijuana card. He said that in all of the cases, the employee presented the card after testing positive. In regard to applicants for medical marijuana cards, there are no conditions that require an evaluation for possible abuse or dependency by a qualified addiction specialist. Gjesvold also noted that, as there are no objective means of measuring impairment with marijuana, an MRO would be unable to make return-to-work determinations under HB 2881.
* Cory Kuvaas, FlexForce Staffing: No Oregon employer should be required to accommodate medical marijuana. By requiring employers to accommodate medical marijuana cardholders, Kuvaas said the state puts them at risk of being sued for injuries caused by impaired workers.
Chair Schaufler plans to assemble a work group to address all three bills.