Legal, But Not If You Plan on Working

Working

Two days before Christmas, on Dec. 23, 2015, Eugene resident Michael Hirsch was fired from his job as a senior programmer and systems analyst with Lane County in Oregon. He was let go as a result of testing positive for marijuana use—medical marijuana use.

Medical marijuana has been legal in the state since the passing of the Oregon Medical Marijuana Act of 1998. Recreational marijuana became legal in the state earlier this year. Although use for any reason, including medical reasons, is legal in the state, this does not have any impact on the company’s drug policy. Michael Hirsch is represented by the American Federation of State, County and Municipal Employees, the largest union of public employees in the United States. AFSCME plans to file a grievance on Hirsch’s behalf.

Hirsch has said that he uses medical marijuana to ease the effects of severe pain, headaches, and abdominal cramping that have plagued his daily activities since undergoing radiation and chemotherapy when diagnosed with cancer in 2011. Although he was diagnosed with stage 3 prostate cancer, he is now cancer free.

Hirsch asserts that he was never under the influence of marijuana while at work. He said he failed to notify the county of his prescription after receiving it last August. The case and Hirsch’s circumstances amplify the conflict between a growing trend legalizing marijuana in accordance with growing societal acceptance while strict employment policies effectively bar the implementation of these new social freedoms.

Jim Steiner of Oregon AFSCME is the union representative who is intervening in the proceedings on Hirsch’s behalf. He told local station KVAL in Eugene, “We think — because there’s absolutely no nexus between him taking this medicine prescribed by a doctor, and what he does for Lane County — that there’s no reason they should fire him.” Hirsch, 60, incurred significant financial injury as a result of his treatment. He has a master’s degree and more than 10 years of experience as a senior program analyst. He is concerned that if he is unable to return to work, he will be homeless in a month’s time.

The Society for Human Resource Management recently published a study surveying 623 HR professionals in states where marijuana use is legalized. The study aimed to understand marijuana workplace policies in the four states and Washington, D.C., where recreational use is legal, and the 19 states where medicinal use is sanctioned.

The vast majority of departments, approximately 96-98 percent, surveyed had a drug policy in place prior to changes in the legal frameworks of their state. A slim 29 percent of HR professionals at organizations in states where marijuana is legal for recreational purposes reported having altered their drug policy since legalization went into effect as compared to only a 16 percent change in states where medical marijuana has been legalized.

The study also reported that approximately half of the departments surveyed have a zero-tolerance policy in place wherein termination of employment is the reported disciplinary action for first-time substance use policy violations. This was certainly the case for Michael Hirsch, who had received no prior warnings or offenses related to marijuana use. Hirsch told the Register-Guard that a co-worker reported him after smelling marijuana on his jacket during a training and he was subsequently tested.

Reflecting on Hirsch’s case, Steiner said, “We think this will be a precedent-setting case which will, not just for Lane County but for employers around the state, take a hard look at their policies and how they deal with prescribed use of medical marijuana.” Cyd Maurer, another Eugene resident and a former TV anchor for local station KEZI, was fired for recreational use of marijuana during her time off work.

Members of AFSCME Local 2831 initiated a fundraising campaign devoted to helping Hirsch with his case. Due to the nature of this conflict, subsequent incidents like Hirsch’s will inevitably arise unless employment protections are put in place that make exemptions for off-time use.

Tori is an artist, activist, curator, and writer from Miami living in Portland.

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