One of the strangest situations created by cannabis legalization in Oregon and elsewhere in the US is the effect, or lack thereof, of legalization on state employment law. Oregonians can get a doctor's prescription for cannabis to treat a variety of illnesses in the state's medical marijuana program, and Oregonians 21 and older can now consume cannabis in private. But state law also allows Oregonians to be fired from their jobs for using cannabis, even if it is being used to treat a life-threatening illness. This legal paradox has cost untold numbers of Oregonians their jobs.
One of those Oregonians is Michael Hirsch, a 60-year old prostate cancer survivor. He said he legally used cannabis on the recommendation of a doctor to treat the side effects of his cancer treatment, but he never used cannabis at work, and never came to work impaired.
Last November, Hirsh says he missed his bus, and he was late for a training seminar at his job with Lane County as a programmer and systems analyst. Two county employees said they smelled cannabis on Hirsh's jacket, and the county subsequently tested him for cannabis. Hirsch tested positive, and the county fired him two days before Christmas.
The firing was devastating for Hirsh. He had already spent his entire savings on his lengthy cancer treatment, and he said the news coverage of his firing made it impossible to find another job.
But much to Hirsh's surprise, on June 23 an arbitrator reinstated him to his job and ordered the county to pay him $21,550 in back pay for his wrongful termination. Fortunately for Hirsh, he had the protection of a union contract that prohibited the county from taking disciplinary against an employee if the employee's actions take place outside of work and do not affect the employee's job performance.
The arbitrator also noted that the county has given only warnings or suspensions to employees for off-duty alcohol use even in cases that had resulted in criminal convictions. Firing an employee for off-duty medical marijuana use, even if in violation of the county policy, would be "far and away too harsh a punishment" for a first offense, the arbitrator said.